Seizing a legally held firearm

jd80

A hypothetical situation

Person A holds a legally owned firearm

Person A suffers a stroke, is taken to hospital and is no compos mentos

His direct family are out of the country

An Garda Siochana take the house keys from the patient and go to his house

They enter it allegedly to look for a phone number of family

They note a firearm, seize it and never give it back (this was before one had to have a gun safe)

What right/law had AGS:

1) to enter the property

2) to seize the firearm

3) to retain the firearm (licence had a number of months to run)

Grolschevik

There are health, mental health and capacity conditions attached to the issuing of a firearms certificate.

If a person is not compos mentis, it is likely that the certificate could be revoked.

Fred Swanson

This post has been deleted.

Grolschevik

Fred Swanson wrote: »

This post has been deleted.

In the circumstances described (no family around, gun not secured, house empty and owner incapacitated), I'd say the only legal issue relates to the initial entry to the house.

jd80

To clarify by non compos mentos, I mean that A fell into a coma

Anyway, seeing as AGS seized the gun on the same day as A fell into a coma, what makes them experts in medicine to determine A's state.

The doctors would not or should not have told them

Grolschevik

jd80 wrote: »

To clarify by non compos mentos, I mean that A fell into a coma

Anyway, seeing as AGS seized the gun on the same day as A fell into a coma, what makes them experts in medicine to determine A's state.

The doctors would not or should not have told them

"Do you suffer from, or have you been diagnosed or treated for any medical condition (physical/mental) that may affect your ability to possess, carry or use firearms, safely?

If 'Yes' please provide full details.

Note: By completing and signing this form you are giving consent to An Garda Síochána to make further enquiries as to your medical history if they deem it necessary in making their decision on whether or not to grant this application."

http://www.garda.ie/Documents/User/FCA1%202012%20.pdf

Fred Swanson

This post has been deleted.

Grolschevik

Fred Swanson wrote: »

This post has been deleted.

That quote is indeed from the initial application form. I don't have time to go looking, but I'd assume that being mentally capable is a condition of renewal of your certificate and that becoming mentally incapacitated would be sufficient reason for the revocation of that cert.

jd80

Fred Swanson wrote: »

This post has been deleted.

That is how I would see it too.

Furthermore, how would A be able to tell at the time of application that he will at some point suffer from a stroke especially if the application were made a number of decades ago as is the case with many legally held firearms?

Where in the statutes or elsewhere does it state that if the holder becomes incapacitated that the licence will be revoked?

If the entry were unlawful, then would not the seizure be also?

Kosseegan

jd80 wrote: »

To clarify by non compos mentos, I mean that A fell into a coma

Anyway, seeing as AGS seized the gun on the same day as A fell into a coma, what makes them experts in medicine to determine A's state.

The doctors would not or should not have told them

If the firearm was legally held, the guards would know about it. If they told the doctor they wanted permission to interview the person, the doctor would have had to explain the condition of the patient.
The guards have a duty to ensure that firearms do not fall into the wrong hands.
If a person living alone goes into hospital in a coma it would be reasonable for the guards to enter the house and try and get contact details for relatives and ensure there are no hazards such as burning fires or running taps or firearms.
It would be difficult to try and show an unconstitutional entry to the dwelling. If a person is in a coma there may be prescription drugs in their home and the treating doctors may not know who the persons GP was or what drugs they had taken. Again it would be reasonable for the Guards to enter the dwelling to investigate.

Grolschevik

jd80 wrote: »

Where in the statutes or elsewhere does it state that if the holder becomes incapacitated that the licence will be revoked?

http://www.irishstatutebook.ie/1925/en/act/pub/0017/sec0008.html#sec8

8.—(1) The following persons are hereby declared to be disentitled to hold a firearm certificate, that is to say:—

(c) any person of unsound mind, and

jd80

Grolschevik wrote: »

http://www.irishstatutebook.ie/1925/en/act/pub/0017/sec0008.html#sec8

8.—(1) The following persons are hereby declared to be disentitled to hold a firearm certificate, that is to say:—

(c) any person of unsound mind, and

He was not of unsound mind - he was in a coma

There is a difference

Grolschevik

jd80 wrote: »

He was not of unsound mind - he was in a coma

There is a difference

But not a difference that would matter in this case, I think.

Leaving that aside, an unsecured gun in an empty house might properly be construed as a threat to public safety and be secured by the gardai on that basis.

Has person A fully recovered? If so and the weapon has not been returned, then that's a different story.

Kevin3

Section 5 of the Firearms Act 1925 as amended by Section 35 of the Criminal Justice Act 2006 states:

Revocation of firearm certificates.

5.— (1) An issuing person may at any time revoke a firearm certificate granted by the person if satisfied that the holder of the certificate—

(a) has not a good reason for requiring the firearm to which the certificate relates,

Being in a coma may be a good reason why he would not require the firearm which may have let to the revocation of the firearms certificate.
Possession of a firearm without a licence is an offence under the Act.

Section 24 of the Firearms Act 1925 as amended by Section 23 of the Firearms Act 1964 gives power to a Superintendent to issue a search order and states:

24.—(1) If any superintendent of the Gárda Síochána is of opinion that there is reasonable ground for supposing that an offence under this Act has been, is being, or is about to be committed, he may issue an order in writing (in this Act called a search order) to any one or more members of the Gárda Síochána under his command and named therein to search any place or premises named in such order.

(2) A search order issued under this section shall authorise the member of the Gárda Síochána named therein to enter the place or premises to which the order relates at any time within forty-eight hours after the issuing of such search order, and if need be by force, and to inspect the place or premises so entered, and to take the names and addresses of any persons found therein, and if the premises are premises of a firearms dealer, to seize any books and papers relating to the business of such firearms dealer.

(3) Any member of the Gárda Síochána making a search under a search order may arrest without warrant any person found in the place or on the premises to which the order relates whom he has reason to believe to be guilty of an offence under this Act.

Powers under Section 7 of the Criminal Justice Act 2006 would allow gardaí to seize the firearm as evidence.

Slyderx1

I assume that the gun was locked securely in a gunsafe as stipulated in the most recent Firearms Regs so since the licence holder is in a coma he could not possibly advise the Gardai where the keys are...hypothetically speaking of course.But the main issue is the entry of the Gardai into a private residence without a warrant and I would guess since they had no legal right of entry then all their actions thereafter was questionable.

jd80

Hypothetically speaking, it was at a time before the requirement of safes, which I believe was 2009(?)

Anyway, as I said n post #1, assume AGS take keys from patient - even though he is in coma

Sulla Felix

I don't remember exactly, but before the safe requirement, weren't firearms required to be broken down and stored in separate areas when not under supervised use?
If they found a firearm assembled, that'd probably constitute an offense under the related Act and they could sieze the firearm as evidence.

The Bishop Basher

Grolschevik wrote: »

Has person A fully recovered? If so and the weapon has not been returned, then that's a different story.

I presume you mean firearm ?

jd80

It is stated in the legislation somewhere about removing the pin and keeping it, ammunition and the firearm stored separately.

I cannot remember if it is an offence by not doing so

Anyway, assume that no criminal charges were or are pending in this case and that is not why the firearm was seized (I do not think they would have even thought of that)

Slyderx1

jd80 wrote: »

Hypothetically speaking, it was at a time before the requirement of safes, which I believe was 2009(?)

Anyway, as I said n post #1, assume AGS take keys from patient - even though he is in coma

What were the Gardai doing in the hospital?

jd80

Very good

Well, it is assumed as man on his own, no relations present, cannot communicate that someone there summoned them in order to contact/find said relations or investigate if any exist

Slyderx1

jd80 wrote: »

Very good

Well, it is assumed as man on his own, no relations present, cannot communicate that someone there summoned them in order to contact/find said relations or investigate if any exist

Highly unlikely but in fairness I know of a case where a person was diagnosed with ahlziemers and before you could say jack flash his licence to drive was under Garda scrutiny and his wife disposed of a matched set of purdeys for a thousand euro.
Unless it was in the aftermath of an accident then I could not envisage Garda involvement..and Gardai contrary to public perception do not involve themselves in comatose patients unless somebody applied for their preseance.

jd80

Sulla Felix wrote: »

I don't remember exactly, but before the safe requirement, weren't firearms required to be broken down and stored in separate areas when not under supervised use?
If they found a firearm assembled, that'd probably constitute an offense under the related Act and they could sieze the firearm as evidence.

Actually the precaution of breaking and storing separately is on the reverse of the certificate and not in legislation as I stated earlier (may be it is contained in the latter as well - I do not know)

Cass

Joining this a bit late, but anyway;

jd80 wrote: »

1) to enter the property

In the circumstances you describe it would seem that they entered for one reason, but as Gardai would be entitled to address anything they deem to be of significant importance. In this case a firearm, asembled, and in open view. Had the house been burgled it could have been taken.

2) to seize the firearm

Knowing the condition of the man described in the OP, and bearing in mind their duty to prevent it becoming a problem (via theft, etc) they would be within their rights. However it must be stored in a secure safe in a Garda station or a nominated registered firearms dealer if the station cannot deal with firearms.

3) to retain the firearm (licence had a number of months to run)

Here is the bit i'm interested in. Did he receive a notification of revocation from the Gardaí as required by law? Has he attempted to have the firearm returned to him?

If through illness, or any other means you no longer fulfill the conditions of the original granting of a firearms license it can be revoked, but the person must be informed of the revocation.

Personally i would make contact with the designated Garda where the firearm is being stored or in the station of the Gardaí that seized the firearm (normally called Firearms Officer)

• Find out where the gun is, and the current status of any license (if one is still running on the gun).
• Apply for a new license (if the old one is revoked or expired), and tick the box that says he has held a license for this firearm in the previous three years (if that is still the case).
• Talk to the Firearm officer to see if a safe is now required. Legally it is not a necessity, but the Superintendent can demand one be installed which makes it a necessity.

If the person has no interest in licensing the firearm he can apply to have the firearm moved & stored in a registered firearms dealer shop for the purpose of selling.

Also be aware that is the license was revoked (leaving the notification aside for the moment) you have a limited amount of time to appeal the revocation otherwise the firearm is sold, and any monies should be paid to the person that was licensed on the gun.

January

Slyderx1 wrote: »

Highly unlikely but in fairness I know of a case where a person was diagnosed with ahlziemers and before you could say jack flash his licence to drive was under Garda scrutiny and his wife disposed of a matched set of purdeys for a thousand euro.
Unless it was in the aftermath of an accident then I could not envisage Garda involvement..and Gardai contrary to public perception do not involve themselves in comatose patients unless somebody applied for their preseance.

Could it be possible that the paramedics saw the firearm when they were responding to the patient and they were obliged to report it to the Garda?

jd80

January wrote: »

Could it be possible that the paramedics could have seen the firearm when they were responding to the patient and they were obliged to report it to the Garda?

No

'A' suffered the stroke at a location other than where the firearm was stored

meathstevie

Cass wrote: »

Joining this a bit late, but anyway;

In the circumstances you describe it would seem that they entered for one reason, but as Gardai would be entitled to address anything they deem to be of significant importance. In this case a firearm, asembled, and in open view. Had the house been burgled it could have been taken.

Knowing the condition of the man described in the OP, and bearing in mind their duty to prevent it becoming a problem (via theft, etc) they would be within their rights. However it must be stored in a secure safe in a Garda station or a nominated registered firearms dealer if the station cannot deal with firearms.

Here is the bit i'm interested in. Did he receive a notification of revocation from the Gardaí as required by law? Has he attempted to have the firearm returned to him?

If through illness, or any other means you no longer fulfill the conditions of the original granting of a firearms license it can be revoked, but the person must be informed of the revocation.

Personally i would make contact with the designated Garda where the firearm is being stored or in the station of the Gardaí that seized the firearm (normally called Firearms Officer)

• Find out where the gun is, and the current status of any license (if one is still running on the gun).
• Apply for a new license (if the old one is revoked or expired), and tick the box that says he has held a license for this firearm in the previous three years (if that is still the case).
• Talk to the Firearm officer to see if a safe is now required. Legally it is not a necessity, but the Superintendent can demand one be installed which makes it a necessity.

If the person has no interest in licensing the firearm he can apply to have the firearm moved & stored in a registered firearms dealer shop for the purpose of selling.

Also be aware that is the license was revoked (leaving the notification aside for the moment) you have a limited amount of time to appeal the revocation otherwise the firearm is sold, and any monies should be paid to the person that was licensed on the gun.

Cass, you're the first one that's making sense in this discussion.

It's a simple fact that the gun owner is temporary, hopefully not permanently, incapable of looking after or handling the gun.

The Gardai who attended and took the gun into safe storage made the right call. Revoking a licence on the grounds of being of "unsound" mind doesn't figure at all in this situation. That particular bit of legislation relates to issues like addictions, metal health problems, dementia etc etc.

Under the current firearms legislation Gardai may enter a dwelling to inspect safe storage and so on so there's no need for warrants and all that stuff. The vast majority of searches of premises Gardai carry out do not require a warrant by the way.

In this case it's even more a matter of common sense that a Garda would not leave a firearm sitting in a house that's going to be unoccupied for a significant amount of time.

Ultimately this is not a fireams licencing issue but an Article 2 of the European Convention on Human Rights issue; the obligation to preserve life. A Garda can simply not leave a firearm sitting in a location where it becomes likely to fall into the wrong hands.

I've read stuff here about removing firing pins and all that which is in all fairness complete nonsense. It would in most cases be the equivalent of having to remove the ignition tube from your car when you park it in the drive, most car owners aren't mechanics neither are most gun owners gunsmiths.

What some, probably a majority of gunowners do, is store a component part of a firearm which is essential to it's operation ( be it a bolt in the case of a rifle or the barrel(s) in the case of a shotgun ) in a different location than the rest of the gun. There are clear guidelines on how firearms need to be stored depending on the quantity and characteristics of the particular gun(s) a person has in their possession.

Bottom line is that the person who suffered the stroke was and still is the owner of the gun. A person can own any amount of legitimate guns but to have possession of a single one will require a licence.

meathstevie

Slyderx1 wrote: »

Highly unlikely but in fairness I know of a case where a person was diagnosed with ahlziemers and before you could say jack flash his licence to drive was under Garda scrutiny and his wife disposed of a matched set of purdeys for a thousand euro.
Unless it was in the aftermath of an accident then I could not envisage Garda involvement..and Gardai contrary to public perception do not involve themselves in comatose patients unless somebody applied for their preseance.

Bloody hell, she was stung out of at least the cost of nice new Merc S-class there...

Kevin3

meathstevie wrote: »

Under the current firearms legislation Gardai may enter a dwelling to inspect safe storage and so on so there's no need for warrants and all that stuff.

Oh right. What's that legislation then?

meathstevie wrote: »

The vast majority of searches of premises Gardai carry out do not require a warrant by the way.

That is absolutely not true in the case of dwellings as we are talking about here.

Grolschevik

Swanner wrote: »

I presume you mean firearm ?

While I appreciate that ‘shootists’ might have their own preferred terminology, I humbly proffer the following (Oxford Dictionary of English; 2nd ed, 2005) :P

Firearm: a rifle, pistol or other portable gun.

Gun: a weapon incorporating a metal tube from which bullets, shells or other missiles are propelled by explosive force, typically making a characteristic loud, sharp noise.

Weapon: a thing designed or used for inflicting bodily harm or physical damage.

meathstevie

Kevin3 wrote: »

Oh right. What's that legislation then?



That is absolutely not true in the case of dwellings as we are talking about here.

This is getting a bit beyond the discussion but how many searches do you reckon are searches after arrest which do not require warrants ?

As for the inspection of safe storage of firearms; it's black on white in the application forms:

"An Garda Síochána may inspect your firearm and/or your firearm accommodation or require proof that they are satisfactory."

Fred Swanson

This post has been deleted.

The Bishop Basher

Grolschevik wrote: »

While I appreciate that ‘shootists’ might have their own preferred terminology, I humbly proffer the following (Oxford Dictionary of English; 2nd ed, 2005) :P

Firearm: a rifle, pistol or other portable gun.

Gun: a weapon incorporating a metal tube from which bullets, shells or other missiles are propelled by explosive force, typically making a characteristic loud, sharp noise.

Weapon: a thing designed or used for inflicting bodily harm or physical damage.

Exactly. So It's a firearm.

Grolschevik

Swanner wrote: »

Exactly. So It's a firearm.

It's also a weapon, and is defined as such in law.


http://www.irishstatutebook.ie/1925/en/act/pub/0017/sec0001.html#sec1

http://www.irishstatutebook.ie/1972/en/si/0251.html

http://www.irishstatutebook.ie/1924/en/act/pub/0009/sec0001.html#sec1

http://www.irishstatutebook.ie/1990/en/act/pub/0012/sec0003.html#sec3

IRLConor

Grolschevik wrote: »

It's also a weapon, and is defined as such in law.

It's a weapon if (as quoted by you) it's "a thing designed or used for inflicting bodily harm or physical damage" which my rifle most certainly is not.

I have a Firearm Certificate issued as according to the Firearms Act in which section 1 defines the term firearm which it then uses throughout the rest of the act. People who shoot get tetchy when people use "weapon" to describe our guns since typically they're the people who are doing their best to have them taken from us.

Cass

Grolschevik wrote: »

It's also a weapon, and is defined as such in law.

Getting way off topic here, but felt i needed to respond.

A suppressor is defined in law as a silencer. A silencer does not exist, as it's impossible to completely silence a shot from a firearm. So don't take what it is called in law as Gospel. Plus from a personal point of view in Ireland the only legal reason for having a firearm is the pursuit of sports shooting (targets) or fieldsports. IOW we do not have firearms for RTKBA or home defence. That is illegal. So the term weapon will appropriate in some circumstances is not valid here.

seamus

Don't see any issue with the Gardai having entered the property for the purposes of contacting family/investigating, etc, and subsequently removing the firearm for safekeeping, in the public interest.

Whether they are allowed to hold it indefinitely depends on what reasons they've given for not returning it? For example, if the licence expired before the owner came out of hospital and the Gardai subsequently refused to renew the licence, then they would be entitled to refuse to return the firearm, presumably.

Fred Swanson

This post has been deleted.

Cass

I would need to read the law/SI again to be fully correct, but basically it works like this (IIRC):

• They revoke the license and the firearm must be surrendered (in this case moot as it's already in Garda custody).
• The Superintendent will give you 3 months in which time you may sell the gun in a manner not breaking any law.
• If after 3 months the gun has not sold the Super will give you 1 more month (this notice is supplied in writing) to sell the gun after which time it will be sold for any amount or destroyed.
• If it does not sell at all the gun is then destroyed.

If sold the money goes to the original owner. If not then the gun is cut into pieces or drilled in such a manner as to make it unusable/unrepairable.

Grolschevik

Ok, we are way off topic admittedly, but I'm talking about ordinary language usage.

IRLConor wrote: »

It's a weapon if (as quoted by you) it's "a thing designed or used for inflicting bodily harm or physical damage" which my rifle most certainly is not.

What do you use it for, then? Hunting? That involves bodily harm (to something) and/or physical damage.

Clay pigeon or similar? That involves physical damage.

And in the Firearms Act that regulates your ownership of your firearm, a "firearm" is defined as a "weapon". I'm just sayin'...

Cass wrote: »

Getting way off topic here, but felt i needed to respond... So don't take what it is called in law as Gospel. P

Again, it's defined like that in the dictionary as well as in a law that is open to interpretation. And there are many many words and concepts that are also open to multiple or varying definition.

However, I see where you're coming from: yes, a hammer is a tool that can also be used as a weapon, but its primary purpose is not as a weapon. I just don't think the use of the term "weapon" is something to get tetchy about, but then again, I'm not in your shoes. If you don't like the term being used, fair enough.

Cass

Grolschevik wrote: »

Again, it's defined like that in the dictionary as well as in a law that is open to interpretation.

As IRLConor said they may be called weapons in law, yet the Gardaí (issuing authoirty) called them Firearm License. Why not call it a weapons license?

You must also be aware that most of our laws in relation to guns are almost carbon copies of English, German, and Canadian laws where the word weapon may nt be viewed so negatively.

However, I see where you're coming from: yes, a hammer is a tool that can also be used as a weapon, but its primary purpose is not as a weapon.

Pretty much.

I just don't think the use of the term "weapon" is something to get tetchy about, but then again, I'm not in your shoes. If you don't like the term being used, fair enough.

It's more about the people that are not familiar or around firearms. The word weapon immediately conjures images of guns used for killing people, tools of destruction, etc. It's a small point TBH, but as firearm owners we prefer the use of the word firearm.

It's like calling a car a "metallic, speeding, death machine" (stretching the metphor a bit here i know). It's apt, but not used.


However for the purposes of this thread all this is academic. The OP has/knows someone in a situation so i think i'll restrict further replies to that, and save derailing his thread further.:)

Slyderx1

All firearms are weapons but not all weapons are firearms and then again a weapon may be deemed a firearm depending on the circumstances that its found.....I still do not think that the Garda could gain lawful entry without invitation , warrant , or reasonable cause that a crime was being committed. If a Garda sees a suspicious herbal plant through a house window he will invariably return with a warrant.... This would be the prudent course in this case.

Cass

Slyderx1 wrote: »

I still do not think that the Garda could gain lawful entry without invitation , warrant , or reasonable cause that a crime was being committed..

According to the OP they were given the keys, and sent to the address to enter the premises to find contact details for next of kin, etc. I'm not a solicitor so don't pretend to understand all the laws regarding the powers of the Gardaí, but in such a situation if they enter a premises for one purpose, and see something that is breaking the law or a possible danger to public safety they are obliged or entitled to act on that threat/infringement.

IRLConor

Grolschevik wrote: »

What do you use it for, then?

Target shooting. Some of the targets are paper. Some of the more modern targets are a grid of lasers to measure the fall of the shot. Only the most pedantic person in the world (yeah, yeah, I know) would consider the paper targets damaged after being shot at considering that it is their purpose to have holes put in them. I would like to say the targets are improved by me shooting at them.

Grolschevik wrote: »

And in the Firearms Act that regulates your ownership of your firearm, a "firearm" is defined as a "weapon". I'm just sayin'...

No, there's an or in there.

“ firearm ” means—

(a) a lethal firearm or other lethal weapon of any description from which any shot, bullet or other missile can be discharged,

which I read as "firearm in the legal sense" is the union of the set of things which are "lethal firearms" and the set of things which are "other lethal weapons of any description from which any shot, bullet or other missile can be discharged".

The second part of that definition is to cover things like rocket launchers, slingshots, rail guns and other such esoterica. They didn't put it in there to define firearms as weapons.

If you're not convinced by that, have a look at (b) in the same definition. They did the same job, just for airguns with >=1 Joule muzzle energy. Considering most of the rest of the world (with the notable exceptions of Northern Ireland and the Isle of Man) considers those things to be toys. You'd have to be completely taking the piss to consider a <7.5 Joule ISSF air rifle to be a "weapon".

Slyderx1 wrote: »

All firearms are weapons

Not true. The intent of the user is what matters. This is why a hammer is mostly not a weapon since it's not usually intended to cause harm. Likewise, my rifle is not intended to cause harm and would only be a weapon if I aimed it at someone with the intent to harm them (or hit them with it, which would probably be more effective).

SB2013

Slyderx1 wrote: »

All firearms are weapons but not all weapons are firearms and then again a weapon may be deemed a firearm depending on the circumstances that its found.....I still do not think that the Garda could gain lawful entry without invitation , warrant , or reasonable cause that a crime was being committed. If a Garda sees a suspicious herbal plant through a house window he will invariably return with a warrant.... This would be the prudent course in this case.

They were on a humanitarian mission. If you had fallen down the stairs of your home and were unconscious at the botttom of the stairs would you expect the Gardaí and paramedics to wait for you to regain consciousness to invite them in?

Once a Garda is in a place lawfully he has a legal power to seize anyhting he sees which may be evidence of an arrestable offence.

ResearchWill

Its simple this is not the investigation of a crime, so there are no issues of unconstitutionally obtained evidence.

So the issue returns to at hand, if AGS entered the house with a stated purpose (to get info on family of a person in a coma) then there is no trespass, if the home owner believes there has been a trespass then he can take action.

Next AGS when in House notice an unlocked on display gun/firearm/shotgun what ever, and say lets take that. Again if the owner has an issue he can bring an action, for recovery of gun/firearm/shotgun whatever.

If the owner believes that his gun/licence has been revoked incorrectly, then he has remedies.

If as I think the owner is in a coma the this is all moot, as the only damage if any has been done to him.

It seems to me AGS correctly entered house, it seems they correctly secured firearm, it seems to me they correctly are keeping said firearm while the person remains incapacitated. If any member of his family want to push the issue, then I can bet the licence and firearm will be correctly taken from this man under the relevant legislation. If he remains in a coma then best bet is to wait till he recovers and he can seek legal advice on the issues.