Friday, October 18, 2013

Oh, They'll Never Arrest Anyone for THAT...

Yes, yes they will.

Traffic stop leads to SAFE Act arrest
LOCKPORT, N.Y. (WIVB) - Lockport Police are coming under fire, following the arrest of a gun owner. Lockport Police made an arrest this weekend, when a man had too many bullets in his pistol clip. Police admit there are even some city employees not happy the man was arrested.

“It's not the kind of history I want to make. You know what I mean? But hopefully we can change some things,” said Paul Wojdan, who is facing misdemeanor Safe Act Violation.
Wojdan had a pistol in his glove box with 10 rounds instead of 7 in the magazine. Now, here's the thing. Under the SAFE Act itself, unless a crime is being committed, the police are not allowed to inspect the firearm. From the comments to the article:
"Absent some indication of criminal activity, there is no right to inspect the contents of a magazine to ensure that it meets the requirements under the Safe Act. If an officer has probable cause to believe that a particular magazine is unlawful, he or she may seize and inspect it. If there is founded suspicion of criminal activity, the officer may ask for consent to check the magazine. However, the mere existence of a magazine, which may or may not be legal, does not provide probable cause to believe that any law is being broken.
If the weapon is one for which a permit is required, police will be justified in checking the permit to ensure that the person lawfully possesses the firearm. If a permit cannot be produced, the officer would be legally justified in seizing the firearm and conducting an inventory of its contents. In this case, the inventory would include checking the magazine in order to account for each round. However, if the person produces a permit and there are no indications of unlawful conduct, an inspection of the magazine would be unnecessary. In this case, the weapon should be secured temporarily, in the same condition as it was found, for the duration of the stop and returned to the motorist at the conclusion of the encounter."
So, the only way the police could have checked the magazine would have been if Wojdan hadn't had a permit for the firearm in his glovebox. Since he had the permit, they were not justified in checking the magazine. Of course, that didn't stop them, and now Wojdan has a legal fight on his hands. It should be a slam dunk to prove that the police had no reason to check the magazines and therefore the arrest was no good, but he's still out a good chunk of change in a legal defense.

I love how the chief hints that the police aren't happy with the law - "there's probably some people in this building that are not in favor of this law" - but they went ahead with an illegal search anyways. This is exactly why we need to remove the police exemptions - I wonder how supportive of these new gun laws the police would be if they had to abide by them like the rest of us peons. Personally, I would love to see Glock, Smith & Wesson, et al refuse to sell anything but 7 round magazines to NYPD. Bet we'd see these idiotic laws repealed quickly.

So, as a cautionary example, be extra-careful in New York - not that you weren't already...

That is all.


Dirk said...

I completely agree that they had no probable cause to check the magazine, as no crime was being committed that involved the gun.

I'm betting that, because he was present when a crime was being committed (his girlfriend being stopped for a traffic violation), they decided that gave them probable cause.

I don't think it'll stand up in court, though. If I was on the jury, it sure as hell wouldn't.

I have to wonder if he can turn around and sue the police department for his court costs and attorney fees...I sure hope so, and I hope a sympathetic judge slaps on some punitive damages, as well.

And, yeah... I know any such settlement is paid for by taxpayers, but maybe that'll help rile some of 'em up enough to start pushing for some recalls and law changes.

Roger said...

When you move from Taxachusetts to Virginia, beware as you travel through NJ, NY, Md. Don't do anything to attract the attention of the local gestapoo. All of those states vigorously ignore the FOPA.

Dave H said...

A traffic violation isn't a crime, so it's not probable cause. It sounds like that was an illegal search.

Ordinarily I'd think the cop just wasn't sure what the rules were for inspecting a magazine, but that second chunk of text Jay quoted was right from the NY SAFE Act guidelines published by the NY State Police, and sent to every PD and Sheriff's Office in the state. Every cop in New York should have read it by now.

Ancient Woodsman said...

The Chief has enough "wink, wink, nudge, nudge" in his tone of voice to make me wonder if this wasn't done on purpose as some sort of test case. And I don't mean as in pro-gun LEOs doing this to test the waters and maybe get some SAFE provisions canned, but rather high-up anti-gunners pushing for a few over-the-top, should-be-thrown-out arrests under SAFE so that they can get a better idea through the courts what will stand and what won't. So they can "fix" SAFE and make it "better" by closing the "loopholes".

I don't like it one bit and do not in any way believe the Chief on this one.

Ed said...

If he intended to willfully violate the law, he would have had 17 rounds in the magazine, not 10. I wonder why he chose to only have 10 rounds.

What is really silly is that he could have chosen to carry a 7+1 capacity single stack .40 S&W SIG P239 and had six fully loaded spare magazines, for a total of 50 rounds. Would that make New York "feel" safer instead of his 17+1 capacity pistol with two spare magazines for a total of 52 rounds?

If New York is depending on incompetent reloading skills to provide "safety", then they have bigger problems than they know.

Daniel in Brookline said...

Incompetent and ignorant police officers are, sadly, nothing new. (Neither are corrupt ones.)

I suspect that an "unofficial" directive has gone out, to some NY locations, demanding that someone haul in a test case for the new laws. If so, the cops were on the lookout for something, anything, that would be an excuse for a SAFE arrest. I've been on the other side of that, and it ain't pretty.