May 10, 2004

Yet Another Reason to Not Surrender Your Gun to the Cops

When a cop asks you to hand over your firearm there's always a chance that he won't give it back - even if you're compliant with all the unconstitutional bullshit gun control laws in your area. Most of the time you'll get the firearm back.

Sometimes however you won't as the following story illustrates:

Ex-San Bernardino sheriff took 523 guns from department, DA says is the headline of an article about a cop who's being prosecuted for theft in San Bernardino, California.

"A former San Bernardino County sheriff pleaded guilty Monday to four felonies after an investigation that concluded he took hundreds of guns from the department's property division during his eight-year term.
Investigators found that Floyd Tidwell, sheriff from 1982 to 1990, took at least 523 guns from the department, including confiscated weapons that should have been returned to their owner or illegal firearms that should have been destroyed, said Assistant District Attorney Michael Risley.
In November, Tidwell returned 89 guns in two milk crates, including a .30-caliber, fully automatic M-2 carbine that is illegal under state and federal law. The whereabouts of the remaining 434 guns are unknown. There is no evidence any have been used in a crime, Risley said.

That basatrd (any bastard for that matter) who takes away a persons property in direct defiance of a person's Right to Property & Arms should have been arrested on the spot & tried swiftly by a jury of his peers. For said bastard to have done this required a lot of other bastards immorally taking away arms from the people.

But the majority of guns are "missing" & will not be returned to their rightful owners. For stealing firearms from the department that were stolen from the people never to be returned again you'd think the bastard would do some time right?

"Tidwell, 74, pleaded guilty to four counts of concealing stolen property in a deal that guarantees he will no serve no jail time as long as he cooperates in helping to locate the missing guns. Sentencing is scheduled for Nov. 4."

I would make his sentencing dependent upon how many firearms were returned to their rightful owners as well as requiring him to pay for the aquisition of rental firearms until the firearms stolen are returned or in the event return is impossible I'd require him to pay for a replacement firearm of equal type & quality. If he complied with that before July 1rst then I'd see it as reasonable to reduce his sentence from 2 years plus 1 year for each firearm he stole to 2 years total without parole. & no I wouldn't care if it wiped out his savings &/or retirement accounts.

Why am I being so harsh? After all he is an elderly person who served his community right?

Age does not matter in this case. He was old enough to know what he did was wrong & age should be no more a factor in his punishment than it should be to an elderly death camper officer.

But what really got me was this:

"During the investigation, a former sergeant told investigators that 'Tidwell used to go through the property division periodically, as if shopping, to take his pick of weapons.' The district attorney's office said two guns were later sold to the public through licensed dealers, 11 went to the department's firing range and "numerous" others were given to civilians and department personnel."

Let me repeat: "...Tidwell used to go through the property division periodically, as if shopping, to take his pick of weapons..."!

He was treating firearm stolen from the people through illigitimate use of the badge as his own personal friggin' gun cabinet!!!

So again I would advise you that under no circumstances whatsoever should you ever hand over your firearm to anyone whom you do not trust. Cops are strangers with badges & you have no idea of their character or their intentions. If you know the cop & trust him then odds are he should trust you so I can't see the compelling reason for handing over your firearm to him. If you don't know the cop then don't hand it over. Explain to him your misgivings about the situation & offer to show up in court to explain your actions should he think it's a ticketable offense. But don't ever hand a firearm to a cop - unless you don't want to see that firearm again.

Yes, you may very well be violating a state law in doing this & you may very well be involved in a dangerous situation because of it. It wouldn't hurt to have a sympathetic lawyer's number speed dialed on your cell phone & an intimate understanding of your state's laws wouldn't hurt. But I'd much rather take my chances on being able to keep hold of my firearm despite a cop protesting that I'm not showing the proper fealty to the state through him than to see some bastard get time served & probation for selling my hogleg on the street even though I broke no laws in carrying it.

Your mileage may vary, but I hope not.


because of some comments I've received from practicing attorneys I'll expand upon what I thought was a disclaimer sufficient enough to appease their concerns that was in the post iteself.

Some states view it as a crime to disobey even an unlawful order from a cop. Some states view it as a crime to not inform a cop of your possession of a firearm & some states view it as a crime to not hand your firearm over to a cop. These states may or may not view all three as a criminal offense.

The reality is that the courts will often take the side of the cop unless you can provide very compelling reasons for them to do otherwise. In a state where all three are offenses odds are you'll lose in court. In a state where it is not a crime to disobey an unlawful order from a cop then you stand a chance of prevailing but only a slim one. In a state where none of the three are viewed as crimes you still stand a very slim chance of getting vindicated in court.

So should it go to court you're taking a big risk.

Likewise you're taking a big risk when you tell the cop you won't hand over your firearm.

So what it boils down to is whether or not you feel your correct in refusing to hand over your firearm to a cop & whether or not you know enough of your states' law &/or have access to a sympathetic attorney to take the risks involved in a court case over it.

To make it very clear it is a very, very risky thing - both on the street (or even in your home) & in the courtroom. Learn all you can about your states' laws before you make a decision. I trust you are competent enough to decide for yourself whether to take the risk or to play it safe.

But regardless of your decision one way or the other, I'll be more than happy to argue, explain or otherwise discuss why I feel it's best t not hand over your firearm, &/or why it is immoral & unlawful for a cop or any public official to demand that you do so (with a few very narrow exceptions).

Posted by Publicola at May 10, 2004 10:42 PM

I share your frustration, Publicola, but that is a shockingly irresponsible post. I'd like to hope that you're just speaking in the heat of the moment, and aren't really advocating criminal behavior which, if they followed your advice, would be likely to get a lot of innocent people killed.

Fortunately, the vast majority of your readers, and gun owners in general, are smart enough not to take this sort of advice seriously. I hope.

Posted by: Spoons at May 11, 2004 10:36 AM

Maybe he has a point. I would add that you also shouldn't stop for the police when they turn their sirens on. Sometimes cars get seized by the government and sold at auction. Why take that chance.

With all the non-pursuit clauses that police departments are adopting, I say when you see a cop try to pull you over... floor it.

What's the worst that can happen?

Posted by: Ravenwood at May 11, 2004 11:14 AM

Bad Publicola, bad! This is absolutely horrible advice. If a cop demands anything, give it to him. Worry about getting it back later. That's where the sympathetic lawyer comes in, not at the time of the incident.

Between Spoons's comment and mine, so far you are 0 for 2 among sympathetic lawyers. That ought to tell you something. This discussion should get really interesting when the not-so-sympathetic ones join in.

Posted by: Xrlq at May 11, 2004 11:47 AM


I disagree that it's irresponsible advice or criminal behavior.
A strict reading of certain parts of the constitution would lead one to believe that a cop on the side of the road cannot confiscate property from you except under certain conditions. Merely possessing a firearm would not meet those conditions (unless it was of a type similar to one used in a crime, or the cop saw you commit a crime with it or another weapon).
Further the correct application of the 2nd amendment via the 14th would prohibit confiscation of firearms unless as stated above a specific crime was commited. Mere possession just wouldn't cut it.
Enter the world of case law & you find these constitutional provisions narrowed to a point that's almost meaningless - but I'll go out on a limb & contend the case law is wrong.

From a legal standpoint it is defensible under most, if not all, circumstances to disobey an ulawful order from a cop or any other public official. What it comes down to is if you want to stand up for your principles in front of a cop who will disagree with you & in front of a judge who will disagree with you.

But to make you happy I'll throw a disclaimer up there (more concise than the one I included in the post).

Ravenwood - no constitutional protections for driving I'm afaraid. Unlike firearms when you're pulled over you don't typically hand over your car to the cops. But I do tell people not to pull over for cops until they reach a well lit public area if they can find one.

There are so many problems I have with the title of your post on this subject - I'll leave it at the idea that a specialist is needed to undrstand & sort out legal matters is one of our biggest problems. The law should be simple & comprehendable enough for the layment to understand & comply with - & also argue about in a court of law. It's not & like I said, that's a major source of our problems as a society.

But getting back to your comment - if a cop demands a BJ you're saying I should give it to him in the hopes of getting it back later?
Any violation of a basic Right is similar - once taken away it cannot be atoned for. You can recieve your property back (if you're lucky) & you can recieve monetary compensation (if you're lucky) but neither will make up for the violation. & as the story above illustrates there's little chance of the offender being punished.

It's a basic premise: cops are generally strangers. It's generally advised as unsafe to hand your firearm over to a stranger. For me the harm in doing so outweighs any risks associated with not doing so. If you feel differently that's cool. It's also understandable.

But to clue you in on how much I value a consensus, every circuit copurt with the arguable exception of the 5th will reject any appeal I file using the logic that the 2nd amendment protects an individual Right. That's how many hundreds of judges & possibly thousands of lawyers? Yet because their logic is not compelling I am not impressed with their numbers.

So if you wish to change my mind then explain why I'm wrong & offer me an acceptable solution. & please make it more substantive than "just lay there & don't resist or you'll get hurt even worse - you can take him to court later".

Just keep in mind that the underlying premise I'm operating on is that it's immoral as well as unconstitutional for a cop to confiscate your firearm w/o having probable cause that you have committed a violent offense.

Posted by: Publicola at May 11, 2004 01:40 PM

It's all well and good to argue about how simple the law "should" be. Personally, I think simplicity is overrated. Some laws are needlessly complex, but most complex laws are complex for a reason, and in many cases, it's a good reason. Regardless, the law is what it is, and urging people to act as though it were otherwise is a very bad idea.

I must say that I find it odd that you acknowledge that the Second Amendment does not apply to the states directly, only to go on to argue the strict constructionist, case-law-be-damned approach to the Constitution. Which is it? The Fourteenth Amendment itself doesn't "incorporate" anything; only case law does. Unfortunately, such case law has yet to extend to the Second Amendment (not that the courts have found much meaning in that anyway).

The idea that it's generally dangerous to hand over a gun to a cop because he's a "stranger" is beyond silly. Approximately ten times out of ten, the cop is an armed stranger, who could do just as much harm to you without your gun as he can with it. Also, I'd to buy a gun from a dealer who's afraid to hand over guns to strangers.

Contrary to your reply to Ravenwood, the jury's still out as to whether or not their is a constitutional right to drive. Of course, there is a constitutional right not to deprived of property without due process of law, and that right applies whether the property in question is cash, a gun, a car, or any other lawfully owned property. And unless teh cops are ordering you to disarm completely, not buy any new guns, etc., the issue is really teh same, whether the cop demands $600 cash, a $600 car, or a $600 gun.

Posted by: Xrlq at May 11, 2004 04:35 PM


How dare you even speak the blasphemy that is the incorporation theory!

Look, prior to the 14th a reasonable argument could be made that the 2nd or any of the bill of Rights wasn't binding on the states. I disagree but I allow that an effective argument could be made. But post 1868 we have the 14th. That does make the BOR applicable to the states. Now I'm not a fan of the 14th for some very complex reasons, but where you & most judges have screwed up is buying into the "incorporation" bullshit.

It is the height of arrogance for judges specifically & lawyers generally to assert that the text of the 14th only has teeth when they say so.

The 14th amendment prevents the states from denying, among other things, the privileges & immunities acknowledged by the u.s. constitution. I see nothing in the 14th that says a judge may decide which privileges & immunities are meant by privileges & immunities.

So where you are incorrect is that the 14th is only applicable by judicial will. Where the courts are incorrect is in unequally applying the 14th.

So I think I'm consistent with my "case law be damned" approach as incorporation of the 14th by the judiciary on a selective basis is perhaps the most damnable case law there is - although that presumption of constitutionality bullshit gives it a run for its money.

As far as the right to drive - if we could eliminate all this gun control BS then perhaps I'd have time to run this blog on a Right to Drive/Travel theme. I do feel that driving is a Right & the privilege doctrines spouted by all the states are incorrect. But my point was more that driving was not specifically mentioned in the constitution whereas owning & carrying firearms was. Not that the Right to Travel/Drive is diminished because of this, but that where guns are concerned there is no ambiguity.

& you're a freakin' lawyer - of course you like complex laws. If we followed Madisons line of thinking about laws & made them simple enough & small enough (i.e. the U.S. Code is not "small") for the average person to understand, then you'd have to find honest work. :) Remember, job security is why the biggest opponent of abolishing the progressive income tax will always be H&R Block.

Oh, I must bring it up - what happens if you advise a client to hand over his firearm no questions asked to any cop who asks for it & he does so to a person masquerading as a cop? It's not that common but it's not unheard of either. I know I've read at least 5 stories in the last year or so about "blue light bandits" in different parts of the country.
& I won't bother touching upon the idea that a cop has criminal intent, after all the New Orleans Police Department is innocent of all those thousands of accusations of corruption, right?

Do as you wish. As for me I think it best to keep my property from being stolen in the first place. You want to hear something that'll make you condemn a laypersons understanding of the law? Due process is not the word of a cop. before any property can be confiscated in accordence with the constitution due process must be served. A government agent saying you have to doesn't strike me as due process. A judge &/or a jury strikes me as due process.

One last thing - let's suppose that gun prohibition & confiscation is quietly implemented. Would you still advise people to hand over their guns ot the cops & pay guys like you to attempt to retrieve them? Would you counsel following the word of a cop or a law even if they are unjust & violative of a most basic Right?

Posted by: Publicola at May 12, 2004 02:25 AM

"Look, prior to the 14th a reasonable argument could be made that the 2nd or any of the bill of Rights wasn't binding on the states. I disagree but I allow that an effective argument could be made. But post 1868 we have the 14th. That does make the BOR applicable to the states."

Publicola, you're really showing that you don't know what you're talking about, now. Before the 14th, there was really no way to argume that the Bill of Rights was applicable to the States. This is simply not an issue upon which reasonable minds can disagree. The Bill of Rights was a limitation on federal power exclusively (remember, "Congress shall make no law...."). In fact, during debate on the text of the First Amendment, Madison proposed that freedom of speech should also be enforceable against the states, and that text was rejected. The framers were very clear that the Bill of Rights did not apply to the States, and several Supreme Court decisions of the 19th century made that perfectly clear. There is no room to disagree intelligently with this proposition.

As for the 14th Amendment, while I generally support the view that the Amendment incorporated all of the Bill of Rights, this is a very difficult question. You make it sound like the 14th settled the question, but you're dead wrong. There is no provision in the 14th Amendment that explicitly incorporates the Bill of Rights. I think there's a good argument that the Privileges and Immunities clause should be construed to incorporate the BoR, but the Supreme Court soundly rejected that idea in 1873.

You have argued that before the 14th Amendment, reasonable minds could disagree about whether the BoR applied to the states, but after the 14th, it is an open-and-shut case. That is exactly backwards. Before the 14th, there was no argument -- the BoR limited the feds, only. After the 14th, it becomes a much more difficult question, and one that remains open, in some respects, more than a century later.

Posted by: Spoons at May 12, 2004 06:07 AM
I see nothing in the 14th that says a judge may decide which privileges & immunities are meant by privileges & immunities.

It's right in there, next to the clause that says that the P&I clause refers to the Bill of Rights. Oops, I almost forgot, that provision doesn't exist, either. Never mind!

Posted by: Xrlq at May 12, 2004 01:03 PM

As evidence, I offer Amendment Four:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I think that would just about cover the unlawful seizure of your vehicle.

Posted by: Ravenwood at May 12, 2004 01:59 PM

There was a court case from the 1850's in either Kentucky or Texas that decided the 2nd was applicable against the states. It was a state court case if I recall & if you're really interested I'll be happy to look it up for you. Granted, it was one case but I found their reasoning to be very compelling. So arguments were in fact made that pre-14th the BOR could apply to the states.

But the gist of my contention is this: it seems just a wee bit off to claim that the people have Rights that cannot be imposed upon by the feds, yet the states are free to quash them at their whim. I am a supporter of federalism & the idea that the federal government should nly have limited power, but as the u.S. constitution is the supreme law of the land I do not see how protections for the people can be a check to stop only the feds yet let the states have free reign over them.

In Colorado Denver & a few other cities have been raising all kind of hell about a preemption law that puts firearms bans out of their grasp. They contend that this law violates their constitutional right to trample the constitutional rights of the people. I see a parallel between their position & those who would argue that the BOR & other Rights of the people set forth in the u.S. constitution are merely prohibitions to the feds & not the states.

I will grant that a reasonable argument can be made against my position, but I don't find it persuasive. I will also grant that the majority of evidence points to your view being the predominent one held pre-1868. But I'll disagree with you & everyone else on this. It's not that I do not know what I'm talking about - it's that my conclusions & logic lead me to a different conclusions than you've reached.

As far as the 14th - it all depends on whether or not you consider the P&I clause to be inclusive of the BOR. I simply cannot see any other reasonable explanation for the P&I clause or the definition of said clause. In fact if I recall during the ratification process of the 14th it was brought up more than once that the BOR was what was spoken of by P&I.

I'm aware of the 1873 decision & I'll try to reiterate my analysis of that: they were out to lunch.
I could understand saying the entire BOR is not applicable under the P&I clause, but to say that a particular amendment is not what was meant by the P&I clause until there's been judicial review is almost laughable. It would be similar to someone saying that "the people" refers only to certain groups of people (such as lawyers, state employees, etc...) after they are defined as such by a court rather than it either referring to everyone in the country or (a position I don't necessarily agree with) every citizen.

So while I can concede that the 14th may not be open & shut (I disagree with the arguments that the entire BOR was not meant to be included by the P&I clause but I'll grant that it's not totally unmeritable) I can state rather solidly that the "incorporation" theory is perhaps the most idiotic (with the presumption of constitutionality giving it a real good run) thing to come out of a sitting judges mouth (with the posisble exception of McReynolds rants).

Now if you're arguing that this is case law & that's how things work - sure I'll agree with that. But what I'm arguing is that case law in this regard (& many others) is a distortion of the text &/or intent of the constitution.

Just remember that I am not a lawyer. I don't have any training that drilled in the importance of case law, or overly complex laws. I simply read the text of the law &/or constitution. when I read a court's decision I don't view it with the goal of using their logic to justify the outcome no matter what - I either find their logic persuasive or I don't. It's not sacred to me unless it seems like a persuasive argument. Cruishanks & Presser & their prodigy aren't convincing. Hell, they're nearly insulting.

Pray tell, what does the P&I clause refer to then if not the BOR? Does it simply mean the Rights enumerated in the text of the constitution itself then? Or does it refer to positive law that clearly & particularly spells out what a citizen may do?

& what sense does it make for the courts to pick & choose which articles in the BOR are applied under the 14th? See, as you so estutely pointed out I don't have a license to practice law. I obviously haven't had the intensive training & study on these very very complex (perhaps too complex for the average citizen?) issues. So explain to me why the P&I clause means only those articles in the BOR that a sitting judge has declared to fit within its scope.

Posted by: Publicola at May 12, 2004 02:58 PM

I don't think there is any consensus among legal scholars as to what the P&I clause was supposed to do. IIRC, some scholars think the author simply liked the sound of the phrase, which also appears Article IV, Sec. 2 of the original Constitution, and copied it reflexively. Another possibility is that both P&I clauses, being similarly worded, mean essentially the same thing. A third possibility - and probably the correct one - is that that the P&I clause of Art. IV, Sec. 2 protects the privileges and immunities of state citizenship, while the P&I clause of Amendment 14 protects the privileges and immunities of national citizenship. Those privileges and immunities may be the individual rights protected by Amendments 1-9, or they could be something else.

Basically, we're stuck with Robert Bork's "ink blot" problem; what do you do with a law that says "Congress shall make no law ..." followed by an illegible ink blot? Obviously, the amendment was supposed to prohibit something, but what? I'm OK with the view that it protects the individual rights of Amendments 1-9, but it's not exactly clear. The only thing that is clear is that if that is the result the drafters of the 14th Amendment intended, they did a lousy job of codifying that intent. If they meant to say "No state shall enact any law forbidden to the United States under Amendments 1 through 9 of this Constitution," they should have simply said that.

I'd caution against drawing too many parallels between Denver's "home rule" challenges (one for CCW, another for pit bulls), and federalism issues. States have "rights" (powers) as quasi-sovereigns under the federal Constitution; cities and counties do not. Denver's challenges are based on an arcane aspect of the Denver constitution which is not paralleled in the U.S. Constitution, nor in those of most other states. The U.S. Constitution is federalist in nature; the Colorado constitution is just weird.

Posted by: Xrlq at May 12, 2004 05:18 PM

In 1975, while returning from the local police range where I had been shooting (with permission) I was pulled over because my car (a Mercedes of all things) theoretically matched the description of one possibly used in a robbery.

I told the cop I had guns in the car. I had the guns properly stowed, locked up, unloaded, with paperwork for each gun and a letter giving me permission to shoot at the police range (of another jurisdiction). I also had a shooting bench, et al, in the car.

I was arrested on the spot, and all my guns confiscated.

Bottom line - it all went away within hours, but it took me months to get my guns back. When I received them grudgingly (after a court order), they had cops initials scratched in each cop knew which gun he would scam when the time came. I spent good money getting the initials honed out. This crappy little police jurisdiction got so bad it was finally dissolved by the state and troopers now protect the area much more professionally.

This shit happens...and I learned a valuable lesson. My guns are rotated now to a safe place. They could ransack my properties and wouldn't find everything. I don't care if you think it's happened to me and I don't want it to happen again...what do you do if they won't give them back.

Oh, and doing ANYTHING a cop asks WHENEVER he asks is the definition of a slave.

Posted by: bjbarron at May 12, 2004 06:28 PM

When the system becomes the one you fear with reason, why should you follow its orders blindly? You shouldn't at all. Keep you eyes open and protect your rights.

Posted by: gunner at May 13, 2004 09:17 PM

I am a resident of San Bernardino County and after reading many of these posts,I feel the need to clarify something here.THE PEOPLE OF SAN BERNARDINO COUNTY ARE NOT SURRENDERING THIER GUNS TO ANY OF THE PAST OR PRESENT SHERIFFS NOR DID THEY HAND THEM OVER TO SHERIFF TIDWELL!THESE GUNS ARE BEING TAKEN FROM THE PEOPLE!!! This practice has been going on for years under the authority of most,if not all Sheriffs here,I imagine from day one.This "theft" is commonly initiated after an individual is arrested even if for a traffic warrant,though most often during a search and seizure following the issuance of a search warrant(or not)regardless of it's validity.Usually, though not always,the warrant(or absence of)is for drugs,mainly Methamphetamine,as this County is said to be the "Meth Capitol of the World"
These intrusions and thefts are followed by incarceration,then the "arraignment", which I thought was so you could enter a plea of guilty or not guilty.Nope.The Judge will enter the plea for you.(probably because you haven't had access to your Atty.or haven't been appointed a Public Defender yet nor will you be appointed one for representation during this process)Next comes the race...and they're all generally in cahoots with each other(Judge,D.A.,and P.D.).....straight to convincing one that thier best bet is to sign the plea bargain so you can be released from jail and if you dont you'll probably sit in jail until either you sign it or get bailed out if you are lucky enough.After signing the agreement,the arrested person is relieved to get out of that scumhole (possibly without being beaten)and they feel as though the got a good deal and they DO NOT want to rock the boat by trying to get thier possessions back.Also,because most of these individuals do not know the law or thier rights,they are led to believe that thier guns* were legally taken in the first place and are told(if questioned)that it wouldn't matter anyway because NOW they are a convicted felon and by law they cannot own or possess a firearm!Many of these people are hard working gun hobbiests/collectors with families that they are grateful to go home to and support.I am not trying to say that none of them are involved with using or selling drugs.Some are,some aren't and I don't believe that should even be the point here.The point is that the ones who are supposed to protect and serve the people are cashing in on them and it's absolutely horrifying!!!!!I am sure that there can not be a system as large and corrupt as the County of San Bernardino,CA.From top to bottom and the small handful of people in this system that are NOT criminals?Well....they are just accessories.
What little I have covered here is merely a tip of the iceburg Because let me tell you,I could go on and on....until perhaps they lost me in a mine shaft!
*This practice does not stop at guns.They'll take your cars,motorcycles,T.V.s,stereo equipment,jewelery,coin collections,cash and anything in between that happens to catch thier eye,and sometimes they will pick up something they want,look straight at you and say"Cool! This is mine" and pocket it!
So...whether you are in a vehicle,walking down the street or in the privacy of your own home and are approached by one of these creeps,it may be best to..... RUN!(but then you'd be breaking the law....and don't think they won't shoot you in the's been known to happen)

Posted by: Dynamo at August 13, 2004 01:23 PM
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