Policy

New Mexico High Court Rules Cops Can Seize Guns During Traffic Stops

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Go figure this one:

Police officers in New Mexico can take guns away from drivers who pose no threat. The state supreme court ruled on May 20 that "officer safety" is more important than any constitutional rights a gun-owning motorist might have. The ruling was handed down in deciding the fate of Gregory Ketelson who was a passenger in a vehicle pulled over on November 13, 2008.

During the stop, Hobbs Police Officer Miroslava Bleau saw a 9mm handgun on the back seat floorboard. Ketelson and the driver of the car were ordered out and away from the car while Officer Shane Blevins grabbed the gun. The officers later learned that Ketelson, as a convicted felon, could not legally possess a firearm. The court, however, only considered whether the officers acted properly in taking the gun before they had any reason to suspect Ketelson, who was entirely cooperative during the encounter, of committing a crime.

The court ruled that the police had acted properly, agreeing with prosecutors who said "that anyone with a gun ought to be considered 'armed and dangerous' and thus the gun could be seized at any time."

This case overturns a 2005 ruling in which the court found

"It would be anomalous to treat the mere presence of a firearm in an automobile as supporting a reasonable suspicion that the occupants are inclined to harm an officer in the course of a routine traffic stop," the court held in 2005.

Whole account at the excellent site The Truth About Cars.

Hat Tip: Jack Shafer

Reason.com on guns and gun rights.

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  1. "anyone with a gun ought to be considered 'armed and dangerous'"

    Indeed.

    1. So, I guess all those cops are armed and dangerous too? Better not tell my (nonexistant) kids seek the protection of a police officer if someone is trying to kidnap them.

      1. That's probably not great advice anyway, unless you want your kids to get kidnapped.

  2. Sounds like unreasonable seizure to me.

    1. YOU WILL RESPECT MY AUTHORITEH!!

  3. Another victory for "officer safety".

    You're little people, and don't forget it.

    1. Don't worry, pending legislation will make "Forgetting It" a felony punishable by seizure of all assets and registration on a sex offender list.

  4. Because a gun would only taken for the duration of the traffic stop, the court decided such seizures were reasonable.

    Clearly, asking them to step out of the vehicle separates them from the gun in this case, so I don't think I buy the reasoning. But let's take it further. Say the driver has a gun in a holster, open carry being legal in NM. Can the officer ask the driver to remove the gun and put it out of reach, then exit the vehicle?

    1. SOP in KY is (for example, if you have a concealed carry permit) is to hand the cop the CCDW with license OR to let the cop know if, for example, you have a firearm in your center glovebox and your insurance is there too.

      The cop will then either remove the gun himself of have you do it carefully. For a friend of mine, the cop took the gun, unloaded it and put it in the trunk. If a cop did that to me, I would get it out of the trunk and put it back BEFORE the cop left the scene.

      But, I dont see the issue with them removing it from the car during the stop.

      1. But, I dont see the issue with them removing it from the car during the stop.

        So, you agree that the police should have the authority to confiscate any gun, anywhere, anytime? Because gun + citizen = armed and dangerous?

        1. I disagree with the ruling.

          But, wouldn't confiscating mean you don't get the gun back? Temprorarily removing something isn't the same. Are you going to try to argue that a cop removing you from the car is a seizure?

          1. Yes... you have been seized.

        2. Armed == dangerous. That's kinda the point of being armed.

          It seems that those who ratified the constitution and those pesky first 10 amendments knew this as well. I think that armed == dangerous was kinda part and parcel to the point of the 2nd amendment.

          1. Cyto, I think dangerous means more than capability. I think it includes intention.

            1. ""I think it includes intention.""

              Certianly should, but it doesn't anymore. I think it relates to the way LEOs try to prevent guys like Loughner, Hassan, and applies to some of the anti-terror investigations. Pre-crime is about interventing before the intention fully develops.

            2. Intention, or immersion in a situation where the subject would feel threatened.

              It is the latter that would seem to apply in the case of coercive encounters with police.

        3. If they're only confiscating it for the duration of a traffic stop, I fail to see the problem. We're not talking about permanent confiscation.

          1. Paranoia is thinking everyone is out to get you. It's the new normal in officer safety.

      2. The "issue" stems from the basis of the Second Amendment, which an informed reading of the framers' thoughts suggests a citizen's right to firearms is, in part, a foil to the power of the state.

        As 0x90 pithily noted above, an armed citizen most definitely (and purposefully) represents a danger to the state. But if the state, represented most often in state-citizen interactions by law enforcement, may disarm you when it believes you pose a threat to its representatives (law enforcement), then the Second Amendment becomes rather toothless.

        1. the Second Amendment becomes rather toothless

          So in your opinion, a nationwide gun ban would be no worse than this ruling.

          1. My point is that this ruling is essentially the SAME THING as a state-wide gun ban for the citizens of New Mexico (this was a New Mexico Supreme Court ruling) as regards their interactions with their state government.

            If representatives of the state may disarm you every time you interact with them, then the state has eliminated one of the founders' primary goals for the Second Amendment, which was to protect the individual's right to "keep and bear" the tools necessary to protect oneself from tyranny.

            Not to put too fine a point on it, in weighing "officer safety" against citizens' "right to privacy" the court ignored "citizen safety," that is it ignores the danger a law enforcement officer (or someone masquerading as an LEO) poses to citizens during interactions such as a traffic stop.

            Much like the recent Indiana Supreme Court when it ruled Indiana citizens have no reasonable right to resist the unlawful entry into their homes by law enforcement, New Mexico's Supreme Court ignores the possibility that an LEO (or someone posing as one) may act in a manner requiring the use of deadly force on the part of a citizen to protect him/herself.

            Indiana's Supreme Court ruling explicitly states citizens may not resist LEO even if they act illegally, but New Mexico's Supreme Court ruling makes essentially the same ruling, in practice, for its citizens.

            For the record, I do not consider this a "good thing."

            1. If representatives of the state may disarm you every time you interact with them

              I guess it depends on the reason for the traffic stop. If they are disarming for you while interacting with you due to your violation of a law, then I dont see the problem with the disarming.

              If the stop is random, not so much. But I oppose random stops anyway.

              1. Random stops have been ruled unconstitutional, no? Outside of DUI checkpoints, where the interaction is brief unless probable cause is discovered.

                1. Do you think that Jose Guereno and Aisha Jones and Gregory Ketelson are of the view that order is more likely to ensue with the state insisting that it has a monopoly on the use of force rather than it having to compete?

                  Remember, the "police power" is not a concept which the framers employed or endorsed.

                2. Temporarily seized, briefly searched; I'm looking, but I can't seem to find these temporal exceptions in the Constitution.

                3. By random, I meant any stop without probably cause, but yeah, true random stops have been ruled unconstitutional.

              2. Let's say you're speeding (breaking the law) and someone posing as an LEO pulls you over to rob you. Before they rob you, however, they ask you to hand over your weapon. Or maybe they're there to steal your weapon.

                See what I'm getting at?

                It shouldn't matter why they are stopping you. Unless they have a credible reason to believe you possess the weapon illegally, or might use it unlawfully, there should be no reason to confiscate it.

                1. Even if they have reason to beleive that you possess the weapon illegally, or might use it unlawfully, they should not be able to confiscate it.

                  A literal reading of the 2nd Amendment just does not admit of any exceptions.

  5. What's that quote-

    "People should not fear the government; government should fear the people."

    I think we're there.

    1. "When the people fear their government there is Tyranny. When the government fear their people there is Liberty."

  6. The High Kangaroo Court is a pathetic joke.
    http://www.privacy-web.no.tc

  7. does not depend on any requirement of particularized suspicion that an occupant is inclined to use the firearm improperly.

    By this reasoning, "officer safety" would be reasonably and justifiably enhanced by tasing and handcuffing all occupants of the vehicle.

    You can't be too careful, where "officer safety" is concerned.

    1. I see nothing unreasonable about that. In fact, it's a great idea! I'm gonna go tell the chief.

      1. Everyone knows that officer safety is paramount. Frankly, I don't understand why they don't mow down everyone they see, just to be certain.

        1. Shoot first; ask questions later. I like the way you think! Why aren't you an upstanding member of the law enforcement community?

          1. Unfortunately, Fist passed (failed?) the IQ test.

    2. Tasing and handcuffing are far more intrusive (and unsafe) types of coercion than temporarily confiscating a weapon.

      You may as well argue that since you have to show your license and registration at a traffic stop, that means the officer can interrogate you on any subject and you have to answer every question.

      1. I enjoy your manufactured exceptions to constitutional protections and prohibitions.

      2. And yet, there is no actual place in the Constitution where it enumerates a right to not be TASERed. But you can find a place where it says your right to keep and bear arms shall not be infringed.

  8. So if everyone with a gun is "armed and dangerous" so that guns can be confiscated during traffic stops, doesn't that mean that guns can be confiscated by police anytime, anywhere?

    Doesn't this effectively repeal the concealed carry law in NM?

    Has one of our doughty 2A rights organizations offered to take the appeal federal?

    1. I hope somebody sues the Justices of the New Mexico Supreme Court for treason. That would be great.

      1. If somebody does, both the somebody and his lawyer could face sanctions for filing a frivolous lawsuit.

        Of course, the notion that judges should be immune from civil liability altogether is utterly incompatible with first principles. The founding generation did not engage in what sheople today would label terrorism for the purpose of shielding judges from facing any consequences whatsoever for their acts as judges.

        It is beyond question that, had the framers and ratifiers intended to shield the judiciary from civil liability, they would have so said. They did not.

        The basis often cited by courts for having judicial immunity is THE BASELESS SPECULATION that judges would be looking over their shoulders every time they made a ruling and that therefore, the quality of judging would suffer.

        1. Looking over their shoulders after violating their oaths as judges? I should hope so!

    2. Justice Petra Jimenez Maes wrote for the court:

      "Under such circumstances, Officer Blevins could constitutionally remove the firearm from the vehicle because he possessed a reasonable belief based on specific and articulable facts which warranted him in believing that defendant was armed and thus posed a serious and present danger to his safety."

      If such specific and articulable facts, consisting of the mere observation of the presence of a weapon, are made justifiably actionable on grounds that they warrant a reasonable belief in the presence of a serious and present danger to one's safety, then we must ask: on what grounds would this court rule that arms cannot also be unilaterally confiscated from police, by citizens? Or similarly, from citizens, by other citizens?

      1. 0x90, you're getting the U.S. confused with an egalitarian system. We have a caste system now, and the rules change depending on what caste you're in.

        Just consider yourself lucky that you still may be allowed to join the warrior caste without a birthright. So you can keep a gun, so long as you're under no pretensions about whose gun it is.

    3. guns can be confiscated during traffic stops, doesn't that mean that guns can be confiscated by police anytime, anywhere?

      How would it mean that? You're slippery-sloping away the qualification that it can occur only during coercive encounters, with no justification for the slope being slippery.

      1. Considering that police can address you wherever you are and you have to answer them or they'll arrest you for some bullshit charge, every encounter is coercive. Tell the guy legally open carrying in Philly that his walking down the street with a gun on his person did not create a coercive encounter with the police. Stop bending over for cops, Tulpa. It's unbecoming.

  9. I hope each and every driver that gets stopped by cops and is ordered to relinquish his carried/stored firearm refuses, and resists violently when an arrest is attempted. Maybe then the fucking despots will be awoken.

    The New Mexico Supreme Court's ruling is repugnant to the Constitution(s) and is therefore null and void. Did anybody tell them that?

    1. You've got it backwards.

      If this were Rule of Law then you would be correct.
      Rule of Law means that legislation and courts must follow guiding principles in the form of a constitution.

      But we don't have that.

      We have Rule of Man.

      Rule of Man means that whatever a legislator, judge or executive decrees is so, guiding principles be damned.

      So in this case the New Mexico Supreme Court's ruling showed that the Constitution is repugnant to Rule of Man, and is therefore null and void.

      Nobody told you that?

  10. Hey Dunphy,

    Are ALL your brother officers pussies?

  11. In GA, the law is the exact opposite of this new NM ruling. See State VS Jones from 2008: http://caselaw.findlaw.com/ga-.....69578.html

    The money quote:
    "The officer did not testify to any suspicious conduct or furtive movement on the part of Jones at any time, and he testified repeatedly that he was not in fear of any aggressive action. ? The officer candidly stated that he had a "standard procedure" of securing any firearm he saw in a vehicle during a traffic stop, because "several times" he had found a stolen gun in a vehicle. ? He had, however, no reason to believe that this particular hunting rifle was stolen.

    ?The trial court granted the motion to suppress from the bench, explaining that the State had failed to show any legal justification for the officer's insistence on seizing Jones's firearm. ? We agree."

    1. I'd have gone even further, but that's pretty good.

    2. I found these two quotes particularly interesting:

      "The State also argues that Jones consented to the seizure of his rifle. ? But "[i]t is well settled that acquiescence cannot substitute for free consent.?[Cits.]" Corley v. State, 236 Ga.App. 302, 306-307(1)(b), 512 S.E.2d 41 (1999)."

      "The officer testified that no video of the traffic stop existed because he had inadvertently destroyed the tape."

  12. gun + citizen = armed and dangerous?

    It's worse than that; much, much worse. That citizen might have some crazy notion that he is an equal, and deserving of respect.

  13. Here in Texas, if you are a CCW holder, they find out as soon as they run your plates. Sometimes they ask if you have it with you, sometimes they don't (I think it varies by agency).

    If you do, in my experience, nothing happens.

    In theory, I don't have a particular problem with an officer temporarily holding a gun when he has an independent basis for concluding you are not only armed, but also dangerous (as in, likely to shoot him). That raises a dilemma, though - if you are too dangerous to trust with a gun, why the fuck give it back after the stop?

    1. Why do you go so soft on the totalitarians in this instance? Should not the same reasoning apply to the officer? Shouldn't he have to give up his gun during the stop?

      You know that there was very little, if any, founding era support for the proposition that the king's men should be able to disarm a colonist for the duration of any encounter initiated by the former.

      1. Why do you go so soft on the totalitarians in this instance?

        Did you miss the part about "in theory", and the subsequent practical objection?

        1. No. Sometimes the mind / finger wires get tangled.

    2. I don't have a CCW, but I do own a rifle which I had mailed into the state. The only time I've been stopped in Texas after I bought it, the cop asked me if I had a gun in the car.

      So it may just be SOP for all of us.

  14. Presumption of guilt.

  15. "You know that there was very little, if any, founding era support for the proposition that the king's men should be able to disarm a colonist for the duration of any encounter initiated by the former."
    Seizure of firearms by the king's men is the reason for the second amendment. They promised that the people of Boston would be free to leave town if they surrendered their firearms. The Bostonians did so and then were denied egress.

  16. Uh, the Constitution and stuff?

    If the cops go to the local shooting range, are they going to take away everyone's guns? They will have to make a "no cops allowed" for membership.

    1. Oh, come now... let's not have hyperbole. It is perfectly obvious that the ruling is merely a mechanism for the state to extend probable cause for "reasonable search and seizure" to include any situation where you have a gun.

    2. The cops probably aren't involved in a coercive encounter with people at the shooting range.

      1. The court ruled that the police had acted properly, agreeing with prosecutors who said "that anyone with a gun ought to be considered 'armed and dangerous' and thus the gun could be seized at any time."

        I don't see any limits based on the type of encounter.

  17. Anyone have some information on how Gary Johnson appointees voted in the case?

    1. All five members are elected judges. Two of them were Richardson appointees who were later elected to the same position.

  18. I got my CCW permit in the state of New Mexico 3 years ago. Ever since, every time I am pulled over officers ask me to surrender my firearm if I have it on me for the duration of the traffic stop. Some are polite (like the Albuquerque Police Department), some have gone above and beyond by (I am fairly certain) illegally reaching in to my vehicle, opening the glove box, and removing my pistol from it, then threatening to arrest me for having it on me (Bernalillo County Sheriffs Department. The thing is, as the more polite and less handcuff-happy APD will tell you, it is their policy to remove firearms from the vehicle while they are going about their business with you, and then give it back to you.

    The problem I see here is not the supreme court ruling. It's not the SOP. It's the way police officers are trained and utilized. In many places, traffic violations, while minor, are still crimes. every time an officer pulls you over for speeding, or reckless driving, or whatever else other excuse they come up with, according to the law, they are dealing with a petty criminal, and sometimes not so petty, seeing as in NM doubling the speed limit can be considered attempted manslaughter, so far as I know. Police are trained to deal with criminals in a certain way. Criminals are considered threats, ergo, Joe Schmo going 57 in a 40 in his Mustang is a threat, as he is a criminal. The problem here is the traffic laws. They need to have the bite taken out of them, Driving needs to be decriminalized. It's a revenue source, nothing more. So treat it like one. Don't shake us down and treat us like criminals for it at the same time.

    1. "It's a revenue source, nothing more."

      That's not entirely true.

      What traffic laws do is they give the police an excuse to engage with anyone at all, since it is practically impossible to obey all the traffic laws.

      Remember that everyone is considered to be a drug user, on probation, having a warrant out for their arrest, etc, until they prove otherwise.

      Presumption of guilt.

      Police are trained to assume that anyone they meet who is not part of the government class is a criminal.
      Not only that, but if someone is part of the government class and they are breaking the law, they must have a valid reason.

      Obey.

      1. yes, you're right, My blanket statement is not totally correct. but the gist of the whole thing is still the same. To police, drivers are criminals, and so we are treated as such. This ruling doesn't actually change anything at all, other than upsetting a few people. But the underlying problem are the traffic laws that make all of us criminals in some capacity.

        1. We are assumed to be drug addled with multiple warrants until we prove otherwise by submitting to a search and having our identification ran through the computer.

          The traffic stop is the way to initiate contact.

          Traffic laws are also a test. They test whether or not you obey your masters. If your masters tell you that you should only travel at a certain speed when it is obvious that it is safe to travel faster, traveling faster means you put your own judgment above that of your master.
          That's bad.
          Same with drugs. Use or even experimentation means you refuse to substitute the judgment of your master in place of your own.
          That's bad.

          Why do you think victimless crimes get more attention than crimes with victims?

          Crimes with victims are not crimes against your masters, and your masters could care less.

      2. ""Obey.""

        That's what it boils down to. Officers are taught that they must control situations. If they start to lose control, they get very pissy.

    2. Most traffic violations are not 'crimes'. they are infractions. If you do not pay, then you can become a criminal.

      Although in VA, driving 80+ mph or 20+ mph over the speed limit is reckless driving, and it can be considered a felony.

      1. No true in some states. Nevada is on example. Traffic offenses are misdemeanors.

        The LVMPD had a policy detailed in a LVRJ article a while back of arresting anyone who had a prior record and was violating any number of traffic/road offenses-driving a bicycle without a headlight, jaywalking, speeding, etc.

      2. So traffic violations are not crimes except those that are? I smell someone tought "legal reasoning."

    3. The problem I see here is not the supreme court ruling. It's not the SOP.

      My problem is that the underlying rationale is senseless. The justification for taking your gun is that you are a danger to others when you have it. So why give it back?

      Either you can be trusted with a gun (which the state has actually officially, legally concluded by giving you a CCW permit) or you are not.

      The cops are effectively saying that they think you are likely to start shooting without justification, which cannot be tolerated around a cop, but is perfectly OK around everyone else.

      1. A criminal has more motivation to start shooting during a coercive encounter with police than he or she does in other circumstances.

        1. But Im still right next to the cop when he hands it back to me.

          1. And at that point you know he's letting you go.

            1. My chance of shooting him is exactly the same.

        2. WTF does that have to do with the routine confiscation of guns from people with no criminal record, Tulpa?

      2. That's a really good point, which does bother me quite a bit. The assumption that any given person when handed a firearm becomes a murderous maniac is something we deal with on a daily basis with cops and with employers. My employer will not allow me to concealed carry at work for fear that a gun will make me deranged, violent, and to shoot up my workplace. Because CCW holders do that sort of thing.

        @matrix: in New Mexico at least, traffic violations are mostly misdemeanors, making them crimes though minor.

  19. Ought possession of a penis be prima facie evidence that a man is a potential rapist?

    1. Well, I suppose everyone has the potential to do anything that they are physically capable of. So being a potential [fill in the blank] should have nothing to do with anything.

  20. How would it mean that? You're slippery-sloping away

    says the guy who tried to tell us our desire to resist unlawful entry by the police meant we all wanted to shoot the cops in the face.

  21. Remember that everyone is considered to be a drug user, on probation, having a warrant out for their arrest, etc, until they prove otherwise.

    You forgot drunk.

  22. Officer Miroslava Bleau saw the gun and Justice Petra Jimenez Maes wrote for the court:

    Under such circumstances, Officer Blevins could constitutionally remove the firearm from the vehicle because he possessed a reasonable belief based on specific and articulable facts which warranted him in believing that defendant was armed and thus posed a serious and present danger to his safety.

    This is looking more and more like a conspiracy of displaced Slavic chicks.

  23. Legal Eagle Lurkers: didn't Florida v. J.L. determine that there is no "firearms exception" to the 4th amendment? Would't that indicate that we could expect this to be overturned upon apeal?

  24. I wonder how much longer the charade is going to go on. You know, the charade where the individual rights of American citizens is respected by the government. Lip service is still paid to the idea but let's not kid ourselves.

    1. Hell, I thought that particular illusion ended in the 70s.

  25. Nice discussion.

    As I said above, I disagree with the logic in this case. But the ruling brings up something about how weapons are viewed in our society. One of the primary functions of weapons is threat display. If you look dangerous, you reduce the risk that someone will attack you. That is part of their function. A law abiding citizen in an encounter with police that has a weapon is perceived as a greater threat...naturally. But that should not move the officer to assume that the citizen is likely to be aggressive with the police officer. It should give the officer pause, and should make sure they use appropriate respect and caution in their interaction. It should help reign in their behavior to make sure the encounter does not get physically aggressive unless it is really needed.

    Bad ruling.

    1. Shorter:
      Police should be very afraid to use force against citizens. They should not have tools to reduce their risk a priori.

      This means, of course, that we should pay police well, and train them well to be assured that they able to handle the danger their job places them in and a appropriate compensated for taking the risks they take.

      1. NM, agree with the first paragraph.

        The second paragraph? Not so much, except, if by "train them well" you mean that they do not receive friearms training, SWAT training and they get a large dose of Buddha / Ghandi / meditation, that would be okay.

        1. The second paragraph? Not so much, except, if by "train them well" you mean that they do not receive friearms training, SWAT training and they get a large dose of Buddha / Ghandi / meditation, that would be okay.

          We disagree. The police officer should be well trained in a range essential skills that include martial arts to defend themselves and others. This includes firearm proficiency as well as mediation skills, negotiation skills, a solid understanding of laws and procedures. To the extent possible, of course, non-violent, or non-lethal methods of defense are preferable, but as long as you have professionals who engage the violent elements of society at the behest of the populace, they need to be able to do the violent things that may flow from that duty.

          Of course, some prefer that there are no professional LEO's...but that is a different discussion.

      2. Many tend to forget, I think, that it is precisely the choice of assuming of such risks, of willfully choosing to forgo his or her own right of self defense if need be, for the very specific purpose of ensuring that innocent citizens might never be mistakenly subjected to the force of the law, which sets an officer apart, and which indeed provides the basis for regarding law enforcement as a noble profession.

        Where this is not the case, what you have is only perceptually superior to (and is likely much more dangerous than) plain vigilante justice, due to its being practiced under color of law.

  26. This will get repealed right? Right?

    1. Nope. I have a feeling the right-wingers on the bench will sacrifice gun rights to "officer safety" any day of the week

  27. Absolutely. Depriving an individual of private property without just cause is wholly ludicrous, unjustifiable, and indefensible. I'd much prefer the cops ready their weapons, even point them in my direction, than take my firearm.

    They're making a baseless assumption -- that I'm a threat simply because I'm armed. What a load of horseshit. Tell you what -- I'll carry a safe in the back of my car, and two keys to it. The cops and I both place our guns in it, and take them out once we're done. THAT I may consider, but nothing more.

    In Alaska, you are required by law to notify police when you're dealing with them that you're armed/have firearms in the car, and they are permitted to seize the weapon for the duration of the encounter. They're prohibited from keeping it afterwards strictly, but it's still totally ridiculous.

    1. "I'd much prefer the cops ready their weapons, even point them in my direction, than take my firearm."

      Given the number of accident shootings we read about here by cops acting like idiots who've never taken a gun safety course, I think you're being irrational about relative levels of risk here.

      1. Yeah, I've still got residue of the "cops are professionals" mentality in my mind. Apologies. Fuck them anyway. I'm not surrendering my firearm to anybody.

  28. Thanks for sharing. Great blog and great website. I actually do not mind that cops are able to seize guns when drivers get pulled over.

  29. The tyranny filled Governent is right. Every armed person is a threat.

    What does that make the police officers?

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