When gun used to kill in self defense and the gun is taken as evidence, can you get it back? Scenario: John Doe uses a gun to kill a criminal in self defense. That gun, the one used, is taken as evidence by law enforcement so it can be investigated and/or used trial or for whatever reasons need be. In the aftermath, tensions heighten and the state charges Mr. Doe with murder. John Doe now has to go through a trial. Months later the trial is finally here. Trial starts. Gun is shown in trial. Witnesses testify all truths. Both sides plead their case to the jury. Trial ends with jury acquitting John Doe because they believe from the evidence they were shown that his actions were legally justified. So now at this point.. THE QUESTION: Can John Doe ask to get his gun back now? Or Can the state/or L.E. give John Doe his gun back at this point? If &quot;No.&quot; Then why not?
Law Enforcement can return a firearm to its owner so long as the owner is not prohibited from possessing firearms, as defined in 18 U.S.C. § 922(g). A person can demand the return of property seized as evidence, if both: The property is not needed for evidence in a criminal trial. The property is not &quot;contraband&quot; (meaning illegal for the claimant to possess). If Law Enforcement does not agree to return the property then the owner can petition a Court of jurisdiction for an order that it be returned.
Since we don't have a system of robot justice, it's impossible to say whether a prosecutor would file charges in this bizarre circumstance, since filing charges is discretionary. However, this situation does fit the description of murder. It is intentional, it causes death (maybe, vide infra), it is not legally justified (as self-defense, or as an act legally sanctioned by a state executioner), the victim is a person. It is not sanctioned by any "death with dignity" statute. The one issue that might be effectively argued by the defense assuming the irrefutability of the factual claims of your scenario is that perhaps the relevant crime is assault with a deadly weapon, since it probably could not be proven beyond a reasonable doubt that the victim died from the shooting, and not from being incinerated by lava. It depends on where the person is shot, and with what.
The General Rule In practice, the only time when self-defense against a police officer is legal is when you do not know and have no reasonable way that you could have known that the person attacking you is a police officer. (And arguably, a police officer acting in an official capacity in furtherance of his or her duties, rather than in a personal capacity as an individual.) For example, if the police do a no knock raid in the dark of night, and don't announce themselves, and you shoot police officers reasonably believing them to be home invasion burglars, you would not have criminal or civil liability for doing so. A similar valid self-defense claim might arise when someone has an objectively reasonable reason to think that someone claiming to be a police officer is really just a criminal impersonating a police officer, even if that belief is, in fact, mistaken. In almost all other circumstances, you need to submit to the officers, and you are pretty much required by law to bear the risk that excessive force by the officer will harm you. If you don't, you will probably be guilty of the crime of resisting arrest and will not be entitled to a self-defense defense. The fact that you are not actually guilty of a crime is irrelevant. This is often the case and police officers are not omniscient. If the officer lacked probable cause for an arrest (which there is often no way that the person being arrested or attacked can know at the time), the remedy is a civil rights suit after the fact, not self-defense. In theory, there might be other isolated circumstances where self-defense against a police officer is legal, but they involve fact patterns so quirky that they would almost never happen in real life, or would almost never be possible to prove in a manner that the courts would believe. Officer Liability For Harming Someone Legitimately Acting In Self Defense Whether the officers had civil liability to you if you were harmed by the officers while exercising your right to self-defense would depend upon their state of mind, even if you were rightfully using self-defense. For example, a U.S. Supreme Court case decided in January of 2017 (White v. Pauly) involved this fact pattern. In White v. Pauly an officer arrived late on the scene and had no reason to believe that the officers who arrived there before him and were being shot at by citizens in a house that they were approaching, lacked probable cause, or had not announced themselves. The court held that as a result, he had no civil liability to a citizen he shot, even if the person who the late arriving officer shot while that citizen was shooting back at the police officers on the scene was actually engaging in good faith self-defense. The citizen's self-defense in the case had a valid defense to criminal or civil liability for firing on the officers, because the citizen shooting back didn't actually know that the people approaching his house were police officers. But, because the late arriving officer reasonably believed under the circumstances that the citizen had no right to engage in self-defense, because he thought that the early arriving officers had probable cause and had announced themselves, the late arriving officer had no civil liability to the citizens he shot.
Charlie may or may not be guilty of murder or of attempted murder. It depends upon his intent and knowledge, which the question doesn't flesh out sufficiently to evaluate. Why did Charlie bodyslam Bob? The reason matters a lot. Did Charlie know that the building was on fire? Was Charlie trying to kill Bob? Was the thing that Bob knocked his head upon an intended result of the bodyslam, or an intervening cause? Did Charlie's initially less culpable act and his knowledge combine to create a duty to rescue and what offense (probably not murder) would it be if a death resulted from a failure to rescue? Alice is likely to be guilty of murder, but on a felony-murder theory, rather than on a transferred intent theory. In most, but not all, states if you are in the process of committing one of an enumerated list of specific felonies that pose a high risk of serious injury or death, such as arson, you are guilty of murder in the event that anyone (even a co-conspirator) dies as a result of your felonious course of conduct, whether or not you intended that a death result. Alice might have been able to purge her felony-murder liability if she had tried to put out the fire and save Bob once she realized that he was in danger, under the exception to felony-murder for renunciation of a course of felonious conduct, but she didn't even try. The doctrine of transferred intent in a murder case usually applies when you intent to kill one person and instead end up killing someone else. But, Alice didn't intend to kill anyway, so this doctrine does not apply. Alice's best defense would be that the death was a result of the attack by Charlie, rather than by the fire, which she would merely have to establish a reasonable doubt regarding. But, ultimately that would be a weak defense for her.
The legal question is whether you can be convicted of a crime under the laws of some jurisdiction on earth. I'll start by assuming that you are in a jurisdiction where you can legally possess firearms and carry them in public. Since you added &quot;and commits suicide&quot;, I assume you're not asking if it is a crime to drop a firearm, the question is just criminal culpability for this consequence. Now we will zoom into the laws of a specific jurisdiction, Washington state. RCW 9A.36.060 says A person is guilty of promoting a suicide attempt when he or she knowingly causes or aids another person to attempt suicide. The question then is whether your act &quot;knowingly causes or aids&quot; an attempted suicide. You turn to the jury instructions to see what that means: A person knows or acts knowingly or with knowledge with respect to a [fact] [circumstance] [or] [result] when he or she is aware of that [fact] [circumstance] [or] [result]. [It is not necessary that the person know that the [fact] [circumstance] [or] [result] is defined by law as being unlawful or an element of a crime.] If a person has information that would lead a reasonable person in the same situation to believe that a fact exists, the jury is permitted but not required to find that he or she acted with knowledge of that fact. [When acting knowingly [as to a particular fact] is required to establish an element of a crime, the element is also established if a person acts intentionally [as to that fact].] The outcome depends on specific circumstances. For example, &quot;accidentally and unknowingly drop and leave&quot; will not sustain a conviction. &quot;Intentionally drop and leave&quot; could, but you would also have to other information connecting the suicide to the availability of a weapon. If you intentionally drop and leave a firearm at a shooting range, a reasonable person would not think &quot;OMG someone might see this weapon and kill themselves with it! Hahaha!&quot;. You can spin a yarn where you know that Smith is suicidal and will kill himself if he has a weapon, so that dropping the gun off constitutes &quot;knowingly aiding&quot;.
I haven't found a recent case like this where it constitutes evidence. Military members didn't have an express right to remain silent until somewhere in the 1950s, so one chances are there might be cases prior to that point. The present right is codified in 10 U.S.C. 831, which is Article 31 of the UCMJ. That said, there is certainly a well documented adverse inference effect. While jurors aren't supposed to take the silence into account (e.g. when a defendant elects not to testify or exercises a right against self-incrimination), it's a difficult thing to do, practically speaking.
The burden for proving claims in civil actions is "preponderance of evidence," i.e., merely that "more than 50% of the evidence favors a conclusion." However, the standard for conviction of any crime is "beyond a reasonable doubt." I.e., if the defense can raise reasonable doubt about one's guilt then the defendant should be acquitted. There is quite a bit of space between the two standards, which is compounded by prosecutorial discretion to even bring criminal charges.
Is this realistic? Yes. The dramatic performance plays out in the same way that it would in the U.S. Court system. The actual killing of the wife would be 'legal', so can he be charged for murder for something that has been done legally, only because they can prove is intent to kill her before that? Especially since he has already been acquitted of that fact. Mostly, this is an issue of causation and not double jeopardy. From a double jeopardy perspective, the crime of murder is not complete until the person dies, and they have not be tried for murder, so this is a different crime that had not occurred until after the attempted murder trial was over. Causation Issues Even if the immediate cause of the wife's death is withdrawal of life support, the shooting could still be a legally sufficient cause of the wife's death. For example, suppose that you shoot someone and the hospital can't give the victim a blood transfusion because the victim has blood type O- (universal donor) which can only receive blood from other people with blood type O-, and the hospital, due to negligence on the part of a hospital administrator, has run out out of type O- blood. The fact that the victim would not have died if the hospital has not negligently failed to have type O- blood on hand does not provide a defense to murder on the part of the person who shot her. While terminating life support is "legal" it also constitutes a non-judicial finding with legal effect on the part of the person authorizing it and the physicians signing off on the decision, the further medical care would have been futile and that the person whose life support was terminated was already dead in key material respects, even though they would not be dead for purposes of a murder charge until life support is terminated. When death is a natural and foreseeable result of action that causes physical harm, the death is caused by the act that causes the physical harm. Something else that causes death would have to be a "superseding cause" and not just an additional cause of death. Thus, the fact that life support was terminated legally does not mean that she cannot be a murder victim. Indeed, many murder victims are people who are on life support for some period of time and then have that life support terminated because it is futile to continue medical care and the person is already "brain dead" or something equivalent to that. Collateral Estoppel Issues Double jeopardy does carry with it a related concept of "collateral estoppel" which provides that facts necessarily decided in one criminal case cannot be decided differently in a subsequent, related criminal case in some circumstances. But, collateral estoppel applies only when the facts in the prior criminal case were necessarily decided on the merits in the prior criminal case. Acquittal of criminal charged does not necessarily include a determination that someone was innocent of the charges. The fact that he was acquitted of attempted murder does not mean that the jury found that he didn't attempt or intend to murder her. In particular, a dismissal of criminal charges as a result of a technicality that excluded evidence related to an element of the crime for which there was an acquittal, is not a determination on the merits that a particular element of a crime was actually absent, so it would not be binding in the subsequent criminal case for murder. An acquittal does not mean that every element of the prior criminal charges was found not to be present. Collateral estoppel arising from the double jeopardy right, in contrast, might be a ground for dismissal of the murder case, if the man's primary (and perhaps only) defense to the attempted murder case had been that he had established the affirmative defense that someone else committed the murder, or that he had an alibi that made it impossible for him to have committed the murder. Then, the jury would have found on the merits that this defense, equally applicable to the murder case, had already been established.