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justAnotherWriter
01-29-2010, 07:26 AM
If someone breaks into your home or store, and you use a weapon to wound or kill him, do the police take the weapon?

What if it is clearly a justifiable homicide? No charges filed, etc?

If they take it, how long before you get it back?

What if it is an extremely expensive weapon, such an antique sword worth many thousands of dollars?

Ms Hollands
01-29-2010, 02:56 PM
Which country are you talking about? I know that in the UK just last week, there was a case of this happening: the man was sentenced to a jail term, then freed on appeal.
http://news.bbc.co.uk/2/hi/uk_news/england/beds/bucks/herts/8469850.stm

I'm not sure if it matters whether something is expensive or not if the police want to take it as evidence.

Rowan
01-29-2010, 03:22 PM
I believe they will take the weapon (for evidence) but you'll get it back. The duration depends upon your jurisdiction (ie., size of department and facilities available, etc.). You get a 'receipt' but of course LE isn't liable for any damages that your priceless object may incur at the lab....... :(
That's just my best guess (from fed LE experience). Hope that helps. There are quite a few LE types on here who can help you out and I'm sure they'll be over soon!!!

Best of luck!

justAnotherWriter
01-29-2010, 05:35 PM
Thanks guys.

The incident takes place in the US, in New York State, but not city. I'm well versed on the self defense laws, enough to know that for this incident the MC would not even be arrested. The object in question is a high end reproduction sword.

The way I've written it now, the police tell him that they have to take it until the DA formally indicates that charges will not be filed, which because of the cut and dry nature of the incident, will be a day or two.

Of course I can always change it if that's not realistic.

RJK
01-29-2010, 05:39 PM
As mentioned above, it depends on jurisdiction. In New York, every serious assault or homicide is brought before a grand jury, even if committed by a police officer in the line of duty. The grand jury determines whether the action was justified by self defense or other justifications under the criminal procedures law. If they agree, you go free. If they don't, you are charged with the crime, and stand trial.
The weapon would be confiscated as evidence and held until the case is disposed.

ETA: we cross posted, but my answer still applies.

Summonere
01-29-2010, 07:49 PM
As mentioned above, it depends on jurisdiction...
The weapon would be confiscated as evidence and held until the case is disposed.

I've read of at least two cases where that didn't happen. One involved a jewelry store heist in which the two fellows at work shot dead the two armed guys who tried to pull a takeover robbery. The other was a cabbie who not only blasted one guy in the back seat who tried to rob him, but then stepped out of the cab and shot at the accomplice who ran away.

Are such exceptions in the decided minority, are they case and jurisdiction dependent (or all three of those things), or are they simply the result of bad and inaccurate reporting?

jclarkdawe
01-29-2010, 09:21 PM
New York's statute:



35.15 Justification; use of physical force in defense of a person.
1. A person may, subject to the provisions of subdivision two, use
physical force upon another person when and to the extent he or she
reasonably believes such to be necessary to defend himself, herself or a
third person from what he or she reasonably believes to be the use or
imminent use of unlawful physical force by such other person, unless:
(a) The latter's conduct was provoked by the actor with intent to
cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such case the
use of physical force is nevertheless justifiable if the actor has
withdrawn from the encounter and effectively communicated such
withdrawal to such other person but the latter persists in continuing
the incident by the use or threatened imminent use of unlawful physical
force; or
(c) The physical force involved is the product of a combat by
agreement not specifically authorized by law.
2. A person may not use deadly physical force upon another person
under circumstances specified in subdivision one unless:
(a) The actor reasonably believes that such other person is using or
about to use deadly physical force. Even in such case, however, the
actor may not use deadly physical force if he or she knows that with
complete personal safety, to oneself and others he or she may avoid the
necessity of so doing by retreating; except that the actor is under no
duty to retreat if he or she is:
(i) in his or her dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police
officer or a peace officer at the latter's direction, acting pursuant to
section 35.30; or
(b) He or she reasonably believes that such other person is committing
or attempting to commit a kidnapping, forcible rape, forcible criminal
sexual act or robbery; or
(c) He or she reasonably believes that such other person is committing
or attempting to commit a burglary, and the circumstances are such that
the use of deadly physical force is authorized by subdivision three of
section 35.20.

Best of luck,

Jim Clark-Dawe

justAnotherWriter
01-29-2010, 11:46 PM
New York's statute:



Best of luck,

Jim Clark-Dawe

The incident falls under 2ai, 2b and possibly 2c, with two witnesses other than the MC who comits the act, one of whom was about to be shot, the other raped.

The aggressor (in this case armed robber) is not killed, but disarmed (literally), after taking two shots at the MC.

Would this need to go to a grand jury (which would mean the sword would be held until then)?

Chris P
01-29-2010, 11:54 PM
Contact the law university of the state in which your book takes place. Most of them have a "for the press" area on their websites with contact info. I've contacted some doing research.

Have your book take place in Alabama. The woman there bent over backwards to answer my questions.

Horseshoes
01-30-2010, 08:50 AM
Yes, the police are taking the weapon as standard evidence collection.
No, he's not getting it back in only two days. (Or even a week. Make it a month minimum, and I'd be astounded if evidence were released so soon in the simplest of jstified force cases.

justAnotherWriter
01-30-2010, 09:24 AM
Yes, the police are taking the weapon as standard evidence collection.
No, he's not getting it back in only two days. (Or even a week. Make it a month minimum, and I'd be astounded if evidence were released so soon in the simplest of jstified force cases.


Thank you. If the perp had been killed rather than having his arms hacked off, would that change things?

RJK
01-30-2010, 10:10 PM
Probably not. The sword is considered deadly physical force, either way. The case would go to the grand jury. There are cases where the DA can present cases out of order. He doesn't have to put each case at the bottom of the slushpile. If this was a "Hot Item" in the press, he might want to dispose of it right away, to clear the sword wielder, and present it to the GJ within days of the incident.
It's important to know, that the DA has a great deal of power and latitude in grand jury presentations. The defense is not even allowed in the room. If the DA wants an indictment, he can sway the jury that way. If he believes the person acted in self defense, he will push in that direction.
You may want to include a grand jury scene in your story, to show how this works.