Dear Jim and Family,
Some months ago, our president signed into law a bipartisan bill that protects Americans from gun seizure during a disaster. In theory, every emergency worker (including police and National Guard) knows they cannot take guns from citizens, period. In theory. In practice its far more likely that we can all expect: the worst case scenario. This is uncomfortable as you have no idea if the cop down the street is honest or a bully who’s taking guns because he can, or because he’s been ordered by by his boss, or a buddy on the force with plans. I have encountered crooked cops. They really do exist, not just in movies. They do a real disservice to honest cops and endanger lives but investigations are hampered by the code of silence and Internal Affairs can only do so much without getting murdered undercover.[JWR Adds: Thankfully, the vast majority of police are honest and trustworthy.]
I’m wondering if your encounter with the police is about to make you a victim or not leaves you with the unpleasant choice of either losing your ability to defend yourself during the most critical time or deciding to be proactive and run the risk of dying for it, or even killing an honest cop by mistake. Following Hurricane Katrina, the Federal government and National Guard behaved in a shameful manner, disarming people trying to protect themselves. The result is this law, which probably won’t be followed. How would you enforce it? Take them to court? If you survive, great. But if you really needed the gun, why did you survive, weakening your own case. If you really did need it you’re too dead to sue.
When the cop says give me your gun what will you do? Do you have a backup? Do you have an argument that will keep him from taking it? Does the cop know or care that taking your gun during this disaster is a Federal crime? And will he harm or imprison you for pointing it out? These are ugly questions, but you had better think long and hard what your options are and what is the appropriate response.
Best, – InyoKern
JWR Replies: You are correct that H.R.5441 has been signed into law, (becoming Public Law No: 109-295). So it would be considered an extrajurisdictional act for any officer to “temporarily or permanently seize, or authorize seizure of, any firearm the possession of which is not prohibited under Federal, State, or local law, other than for forfeiture in compliance with Federal law or as evidence in a criminal investigation” during “a declared disaster.” By now, all sworn officers at all levels should have been briefed on this law, and its existence has surely been added to the curricula of police academies. In most states, by exceeding jurisdictional authority, officers shed their “Sovereign Immunity” from prosecution and/or civil suit as individuals. (Up to a $100,000 per Title 42, USC.) In many states, sworn officers sued in this manner for damages in their personal or individual capacities are classed as “persons” (rather that state officials). See: Hafer v. Melo, S.Ct., 112 S.Ct. 358, (19, 116 L.Ed.2d 301 91). And in many states, by doing so they even put themselves in the same category as a common criminal. To wit, extrajurisdictional seizure of property constitutes common theft. (Technically, you would be able to place an officer under citizen’s arrest. But I wonder what circumstances would allow you to safely do so.)
The wise course of action during a disaster is to studiously avoid confrontations with anyone in law enforcement that is exceeding their authority. And, if you are unfortunate and do get your guns seized, then have a backup set of guns cached nearby. They can’t take what they can’t find. BTW, this is just another example of the value of redundant logistics. Don’t be belligerent or come to blows over this issue. Worry about recourse in the courts later. In the short term, your key responsibility is to protect your family members and see them safely through the crisis. And you can’t do that if you are behind bars.