Does pulling a gun in self defense still count as an assult? I was speaking with a coworker who was using an example of pulling a loaded gun to drive away a mugger who as armed with a knife, with the mugger fleeing without shots being fired. He said the gunowner's actions were completely legal and no legal action would happen even if the encounter witnessed by police. My understanding is that would still count as an assault (or some other charge?) legally, but that he would have an affirmative defense. He would be found innocent, but he still officially committed an assault and could be forced to justify it. Is it true that no assault, or other crime, was committed by the gunowner in this scenario?
Yes to everything. Justified use of force is assault / battery / homicide (as appropriate). "Assault" means that a person has placed someone in fear of their life or person. "Battery" means that a person has physically struck someone in some way. "Homicide" means that a person has killed another human. None of these definitions speak to the legality of the action. You are right about the example being assault. Justified use of force is de facto legal. Assault, battery, and homicide are normally crimes, but the justifications for using force carve out exceptions. If the circumstances fit within the justification, the person using the justified force has not committed a crime. (Generally speaking, the person targeted by said force has.) If the situation you describe fits within the laws of justification within the state (and to be fair, it probably does), then your co-worker is right about the actions being perfectly legal. Police are picky about what they investigate, and prosecutors are picky about what they charge. If it's 100% clear from the evidence that you were justified in your use of force, prosecutors will (typically) not press charges, and so police will not bother with an arrest or further investigation. It's really not worth the time and effort for a case that has 0% chance of producing a conviction. However, if the police and prosecutors have some doubts (e.g., they think your force was excessive and therefor not justified), they can still press charges. Being charged with a crime does not mean you have committed a crime. And vice-versa. Justification is an affirmative defense against charges of assault / battery / homicide. An affirmative defense does not mean "I confess to the crime but have a really good excuse." It means that you admit to certain facts that would normally be beneficial to the prosecution, but claim additional facts that either mitigate or make you innocent of the given charges. In the case of justified force, you are admitting to the action of assault, but claiming innocence. When making your defense, your theory of defense must be internally consistent. You cannot admit to a fact when convenient and deny it when it is inconvenient. "I was in Santa Fe at the time, and anyway, Sam did it," is an example of a self-consistent theory that gives multiple reasons to acquit. That's good, because the jury only needs one reason that gives them pause, and now you've got two chances at that. "I was in Santa Fe at the time, and anyway, he was threatening my life," is not internally consistent. If you argue justification, you explicitly declaim any alibi. This situation is more dangerous, because your defense rests entirely on the credibility of the justification. But if you argue an alibi, you implicitly declaim any justification. So building your defense on things the prosecution can disprove is much worse than taking an affirmative defense of justification.
The pawn shop has the "use of property" of their own premises. The pawn shop has obviously the right to examine the gun to determine its value, for example, or to clean it if it needs cleaning to avoid damage, or to show it to a potential customer. And the pawn shop is allowed to let the police onto their own premises, even without a search warrant.
There isn't one simple answer. The case prohibited a showing of a &quot;special need&quot; for a concealed weapon to allow one to have a permit. Many California concealed carry laws have similar requirements. But, California doesn't have just one concealed carry law. There is a default rule that applies in small, rural counties, but most larger cities and counties in California have their own specific concealed carry laws and the precise grounds for denying a concealed carry permit would matter. In all likelihood, many provisions of existing California concealed carry laws would remain grounds to deny permission to concealed carry (e.g. age, history of drug abuse, criminal record, restraining orders in place, etc.), while others provisions would no longer constitute valid grounds for a denial. This particular decision is about denying permits based upon lack of a particularized need for one different from other members of the general public, rather than about any possible reason that the permit applicant could be deemed untrustworthy to have a permit. The decision discusses the idea that it is problematic to have unfettered discretion in issuing permits, but doesn't really base its ultimate conclusion on that ground. So, something like a general residual &quot;good character&quot; requirement, while vague, wouldn't be squarely within the scope of the most recent decision. The case also doesn't itself prohibit (nor does the case law) some reasonable fee for issuance of a concealed carry permit. Thus, the new case does not require uniform law with &quot;constitutional carry&quot; for everyone permitted by federal law to own a gun. But, it does prohibit limitations related to a requirement to show a need to have a concealed carry permit.
This is a good question, which I am going to answer from a practical perspective, rather than a theoretical one, which would probably justify a law review article (applications of the takings clause to criminal justice fact patterns is actually one of my pet areas of legal scholarship, but a lot of it calls for dramatic changes in established practice and precedents reached from other perspectives, making it impractical to pursue in real life). I recently had a case along these lines in my office where my client's property was seized as evidence in a criminal case against a third-party. The crime involved a gun shop where all of the guns that were in the possession of the shop owner for repairs at the time of the bust (i.e. as bailments), including ours worth several thousand dollars in addition to having some sentimental value, were seized as evidence of charges against a shop owner who was fencing stolen goods, making sales to felons off the books, falsifying excise tax returns, etc. He seemed legitimate and had been in business for many years in what was not a fly by night operation. He had all of the proper licenses. Who knew we were dealing with a crook? In that case, we intervened on behalf of our client in the primary case to seek the physical return of the property (basically a replevin claim), as have others affected by the bust. It took a few months and some legal fees, but we prevailed without too much effort, as have the other intervenors. Generally speaking, to make a 5th Amendment claim, you would have to show a total taking and move into some legal gray areas in this context, while it is usually hard for authorities to show a continuing need for possession of third-party property in the face of a demand for its return, especially when photography and other scientific tools can document the evidence in great detail these days. In that case, showing that our client's particular gun was not involved in any illegitimate transaction also simultaneously made it less important as evidence, although that would not necessarily be true in general in these kinds of situations. There is a pending case in Colorado posing similar issues, where a suburban police department essentially destroyed a guy's home in order to catch a felon with no relation to the homeowner whatsoever, who had fled into it and taken refuge there. But, that case, as far as I know, has not yet been resolved on the merits.
You are conflating the crime against the state of possession stolen goods with the common law tort against the owner for conversion. To your questions: How would this proceed? It seems like it would be very difficult to prove (short of getting public surveillance footage) that I even bought the item. If you read the second paragraph of the page you linked it says: In many jurisdictions, if an individual has accepted possession of goods or property and knew they were stolen, then the individual is typically charged ... If the individual did not know the goods were stolen, then the goods are returned to the owner and the individual is not prosecuted. Proof of the crime involves a "beyond reasonable doubt" standard of evidence of both the fact that you have the goods and that you knew they were stolen. If you become aware that they were stolen (e.g. the police tell you) and try to keep them then you have just committed the crime. Proof of the tort requires a "balance of probabilities" standard of evidence that you have the goods and that they belong to someone else; your knowledge that they were stolen is immaterial. In the first instance, the police would probably knock on your door, tell you why they were there and ask if the version of the story they have from the thief is essentially true. What happens next depends on your response: "Yes, I knew it was stolen; you better arrest me and I will plead guilty." This will play out as you expect. "Yes, I didn't know it was stolen, I will go and get it for you." You return the goods, give a statement and may have to act as a witness in the prosecution of the thief. You are down $1,000 but are now older and wiser. "No, I have no idea what you are talking about." Well, you have now committed the crime of hindering a police investigation and have also committed the crime of possessing stolen goods - you can no longer claim that you didn't know the goods were stolen; the police have told you they are. What happens next depends on if the police believe you or the thief. Surely they couldn't/wouldn't get a warrant to search my house? Want to bet? They certainly have enough to get a search warrant if they want one (probably). Whether they seek one probably depends on the value of the goods, how busy they are and how much you pissed them off. Could I be prosecuted if I didn't know it was stolen? Not if you return it as soon as practicable after being made aware that they were. The scam This seems like a lot of work for a very small return - spend your time worrying about things that are more likely to happen. Good Title All of this is tied up with the concept of good title. Basically, you cannot gain good title to property from someone who does not have good title themselves; if you buy goods from a thief you do not own them. For example, if A has good title to the goods, B steals them and sells them to C who sells them to D then A still owns them and can demand their return from D, D could demand the return of their money from C and C could do likewise with B but as far as A is concerned it doesn't matter that C &amp; B have lost money; that is simply too bad for them.
There are no cases interpreting the Second Amendment to have that meaning at this time. Even when regulations on corporate gun dealers are held unconstitutional, this holding, thus far, has always been because the regulations burden the rights of natural persons who own guns to bear arms. But, while corporations do not have the right themselves, they do have standing to bring suit regarding regulations of their corporations that burden the Second Amendment rights of their customers in a way that allegedly violated the right.
I interpret the sentence &quot;intruder enters your home using the internet&quot; in the question as not as physically entering the home but as virtually entering the home, in other words hacking into the victim's home network remotely. When that interpretation is incorrect, please comment. Note that an action can only be considered self-defense when the self-defense prevents a crime currently in progress from being completed. When A hacked into B's computer and then B punches A in the face later, that's not self-defense, that's illegal vigilante justice. The self-defense argument would only work if it actually prevents the completion of the crime. For example, if A and B were in the same room, A sees B hacking into A's computer right now and uses physical force to prevent B from completing the hack (like yanking the keyboard out of B's hands). Also keep in mind that the intensity of self-defense must be appropriate for the severity of the crime. What is and is not appropriate is for a court to decide in each individual case, and the guidelines that are to be applied vary from jurisdiction to jurisdiction. But causing bodily harm to people when the crime they are committing does not cause bodily harm is often not considered within the limits of self-defense. For further information about what is and is not allowed in self-defense, I recommend the series about self-defense by Law Comic.
If the police confiscate a weapon that isn't owned by the suspect, would they have grounds to keep it? Not forever. For example, let's say the gun was owned by a friend or parent? What if the gun was owned by a Trust with several trustees? Third party owners of property lawfully seized from someone else can recover it. For example, I once took legal actions to recover a gun for a client that was in a gun repair shop that was seized in a criminal investigation because most of the inventory of the shop where it was being repaired consisted of stolen firearms and the primary business of the gun repair shop was fencing stolen property (a fact of which my client was completely unaware and shocked to discover). But, that was only possible once the trial was over because the guns seized were part of the evidence in that trial. A similar process applies when there is a civil forfeiture of property owned by a third-party. Could the owner (personal or trustee) recover the gun from police custody independently of a court finding on the suspect? Sort of. But it isn't entirely independent, since the firearm might be needed as evidence or might need to be kept out of the possession of the person from whom it was seized to effect the red flag order while it was in place in a way that that the third-party owners would have to assure. An example might be where a gun is confiscated via red-flag law, where no crime has been committed, but the suspect won't get his day in court for 6 months. Would the true owner, or partner owners if in a Trust, be denied their property or could they go ahead and recover it pre-trial (ie. the day after it was confiscated)? In the case of a red-flag seizure, the existence of the gun wouldn't be evidence in the court proceeding, so it wouldn't have to be retained for that purpose prior to trial. But, the owner of the gun would probably have to petition the court to regain possession and would have to demonstrate that the red-flag order would continue to deny the person who had the gun possession of it until the red-flag order period expired (if ever). If the trustee was the red-flag order target, or was someone related to him (or her), that might be a showing that the trustee could not make. Caveat Of course, red-flag laws are specific pieces of state legislation. Each one is different. Many would provide a specific statutory procedure for how this issue would be handled. For example, in some places, the proper means to regain possession of property held by law enforcement in connection with a criminal case is a motion filed by a third-party intervenor in the criminal case, while in others, the property process is to bring a civil action for replevin (a lawsuit to regain physical possession of particular items) against the law enforcement officer in possession or constructive possession of the property in question.