Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
Recorded at the office for a roadside chat. The question came in from an officer in Texas, and it’s one Anthony says he had never thought about before.
We got a question from an officer in Texas. It’s actually a good question that I never thought about before.
He says: do officers have to return a firearm to its original state or location following a search stemming from a traffic stop?
A little bit of context here. I’ve seen a lot of officers unload firearms before returning them, or placing them in the trunk of a car after searching the vehicle. What are the legal issues, if any, surrounding placing a person’s firearm, who has not been arrested, basically in an inoperable state, or in a location it was not found in? Would having probable cause or the person’s consent to search change things at all?
Can police seize your gun during a traffic stop if you are carrying legally?
So the first thing I want to share with you is that seizing the firearm generally is accepted by most courts. Even when they’re carrying lawfully, like Texas, and in Nevada and Tennessee. A lot of these places have very liberal concealed firearms policies. Some states like Texas have gone to constitutional carry, which means that lawful citizens can conceal without a permit.
Let me give you a quote from a case out of West Virginia. It says: “being dangerous automatically follows from being armed, for the risk of danger is created simply because the person who was forcibly stopped is armed. Whether the person lawfully carries the firearm is inconsequential, because the danger justifying a protective frisk arises from the combination of a forced police encounter and the presence of a weapon, not from any illegality of the weapon’s possession.”
So this court, it does kind of make sense. I mean, the rules are in your favor when it comes to seizing and holding on to a firearm during any kind of lawful encounter, whether it’s a traffic stop, investigative detention and so forth. If the person is lawfully carrying, it just makes sense that you have the authority to seize that weapon during that encounter, even if it’s lawfully carried.
Is there any case law on officers disassembling a lawfully carried firearm?
Now, going to the officer’s question. Can we also disassemble the firearm? Can we move its location?
Well, the reality is that there’s not, to my knowledge, any case that has actually directly addressed this issue. And it kind of makes sense, because I don’t know what the motivation would be for a driver who is lawfully carrying a Glock 17 to then have that Glock 17 put in his trunk, to file a lawsuit against you. When (a) the cop probably lawfully seized it, because that West Virginia case is an example, and (b) the cops didn’t take the firearm.
So what is the motive? Why go to federal court and say the officer violated my rights because he put my gun from the center console or my backpack into the trunk? Or likewise, the officer disassembled my firearm and now I had to put it back together. I just don’t see the motive. So it makes sense that there’s probably not any, or a lot of, case law in this area.
Can an officer put your gun in the trunk and take it apart?
So the answer for my officer. Can it be done? I think the answer is yes. I think that even if a court directly addressed this issue, they’re going to come out in favor of the officer. They’re going to give the officer the latitude to do what they need to do to stay safe.
And I think that also makes sense, because if the court upholds the actual seizing of the firearm for lawful reasons, why would they require you to put that same gun into the driver’s hands, basically, or possession? Let’s say it was right in the center console, again, all lawful. Why would they require that? I mean, right. They would allow you to keep it out of their reach during the entire traffic stop, and including while they’re driving away.
All right, there’s your answer. But I’m not done with you.
Just because you can disassemble someone’s firearm, should you?
Okay, so let me give you a little bit of uncle Anthony’s advice. Just because you can doesn’t necessarily mean that you should. Let me give you three reasons why.
Number one is, the Second Amendment is a constitutional right. I know that California and New York and New Jersey and Maryland don’t think so, but it is. It’s a constitutional right.
And when you’re dealing with people who are lawfully possessing these firearms, and they tell you, and they’re on the up and up. I mean, it’s a traffic stop for whatever, but they’re telling you they’re lawfully carrying, they got the paperwork and the license if that’s what’s required. Well, we don’t want to necessarily trample on their rights by treating them like they’re criminals, if that makes sense.
I mean, you carry a firearm. Your family probably, some of your siblings and so forth, carry firearms. If they got stopped by the police, you would probably respect and appreciate if the officer treated them like, you know, not like a criminal.
So there’s that one thing.
What happens if you have a negligent discharge with someone else’s gun?
But more importantly, here’s the second thing. The more you handle and manipulate another person’s firearm, the more chances that you have an accidental or a negligent discharge.
Especially, I mean, holding the firearm and keeping it in its holster and all, that’s probably going to be a rare circumstance that you have a negligent discharge or an accident. But if you disassemble that firearm: that’s not your firearm. You don’t know if it’s been modified, or the guy’s done some weird stuff to the trigger and it has a hair trigger. You may not be familiar with that type of firearm.
There’s hundreds and hundreds of different firearms out there. Are you familiar with every procedure to safely unload it and disassemble that firearm without breaking something, or God forbid, it has a discharge? Are you familiar with that? I’m not, and I’m pretty familiar with a lot of firearms.
So that’s another variable that I would like to not have to be introduced, unless it’s necessary. Because in many departments, if a cop has that negligent discharge and blows a round off, that in itself could be an offense that could result in termination. Especially if there’s other things going on to compound that.
And then also, God forbid that even though you’re pointing it in a safe direction, you have a negligent discharge or an accidental discharge, and the round skips off the pavement and hits somebody. Now you really are. And all for what? To just disassemble a firearm?
Have a reason to do it.
What if the driver has to put his gun back together in a parking lot?
The final one is: you disassemble this firearm. I mean, putting it in the trunk is one thing. I don’t see a lot of problems with that. Do what you’re going to do.
But disassembling that firearm, and then you put it in the trunk, and the guy is basically told hey, you can do it somewhere else. You can put that gun somewhere else. So now you’re telling him to go, and he’s motivated to go pull into the next 7-Eleven or Walmart parking lot, whatever it is, pull this gun out, start messing with it. Maybe people see him messing with the firearm, they call the police, and now you have this call for service.
And maybe, God forbid, he’s frustrated about this whole thing, maybe he doesn’t really know firearms as well as he should, and then he has a negligent discharge, and then that causes problems.
You get my point.
How I handled lawfully armed drivers when I was a cop
So can you do it? Yes. Should you? I think you have to have a reason.
I used to, when I first worked as a cop, I would seize a lot of weapons. And then I grew out of that real quick, because of these reasons I’m telling you now.
Eventually I was like, when I pull somebody over and they would say hey officer, just so you know, I do have a firearm, I have a lawful concealed carry, here’s my card. And I said, where’s the firearm at? He’s like, oh, it’s on my person, or it’s in my backpack.
And quite frankly, those are the people that don’t worry me. It’s the people who don’t tell me they have a firearm that worry me. So this guy’s telling me he has a gun, he also has the credentials to have a firearm. I personally wasn’t worried about these guys. In fact, I respected it, because they’re going through the process to carry firearms for self-protection. It’s a constitutional right.
I would say, you don’t go for yours, I don’t go for mine when I approach the vehicle. Just keep your hands so I can see them and everything should be just fine. I appreciate you telling me about the firearm.
All right, that’s how I feel about it, guys.
I hope I moved the ball forward. Keep your questions coming. I hope it helps you get it right every time. That’s my mission in life, get these decisions right every time. See you next time.
The short version
- “Seizing the firearm generally is accepted by most courts. Even when they’re carrying lawfully.”
- “Whether the person lawfully carries the firearm is inconsequential, because the danger justifying a protective frisk arises from the combination of a forced police encounter and the presence of a weapon.”
- “There’s not, to my knowledge, any case that has actually directly addressed this issue.”
- “Can it be done? I think the answer is yes.”
- “They would allow you to keep it out of their reach during the entire traffic stop, and including while they’re driving away.”
- “Just because you can doesn’t necessarily mean that you should.”
- “The more you handle and manipulate another person’s firearm, the more chances that you have an accidental or a negligent discharge.”
- “It’s the people who don’t tell me they have a firearm that worry me.”
- “Have a reason to do it.”
Source video: Blue to Gold Roadside Chat Ep. #214, “Can Officers Disassemble a Lawfully Possessed Firearm During Traffic Stop?” (watch on YouTube)
This article is legal education, not legal advice. Firearms law and agency policy vary by state and by department. Check your own statutes, case law, and policy before you act.
Related from Blue to Gold
- What Is LEOSA? A Plain-English Guide for Active and Retired Officers
- COPS: Think twice before breaking that lock!
- Can You Run a Gun’s Serial Number During a Traffic Stop?
This article is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
