Firearm folly - Licensed gun holders uncertain about the law
When the column 'Think twice before you fire that licensed firearm' was published two weeks ago, I did not think that it would have been met with so much interest from the licensed firearms community, but it did. In fact, so overwhelming was the feedback that I decided to dedicate this week's column to answering some of the questions I received.
Query: When going abroad, is it safe to leave your firearm at a friend's house who is also a licensed firearm holder? Also, what are the implications should someone break in and steal it?
There is a popular misconception that a licensed firearm holder leaving Jamaica who does not desire to take his/her weapon/ammunition with them must leave same with the police. This is not accurate. The Firearms Act sets out several other options other than leaving the firearm with the police. To begin with, the firearm holder may, before leaving the island, arrange for storage of the gun and ammunition under such conditions and terms as are approved by the chief officer of police. Conceivably, therefore, one could well leave his/her firearm in a safe at his/her home but only if the appropriate police personnel approve those arrangements.
Additionally, the gun can be left at specified police stations, generally the divisional headquarters.
The gun can also be left in the possession of someone who has a licence in respect of the said firearm, for instance, in the case of securities companies where several persons may have a licence to use the same firearm, then in such an instance the firearm could be left with a co-worker who has a licence for the same gun.
However, I would strongly advise against leaving the gun at a friend's house.
As it pertains to the second question, if a licensed firearm holder loses or has his/her firearm stolen, such loss or theft is to be reported to a police station within 48 hours after the theft/loss is discovered. Any person who is in breach of this section shall, upon conviction, be liable to a fine not exceeding $100,000 or to imprisonment with or without hard labour for a term not exceeding 12 months.
Additionally, Section 41A of the Firearms Act stipulates that if a licensed firearm holder loses his firearm through negligence on his part, he shall be guilty of an offence and on conviction shall be liable to a fine not exceeding $100,000 or to imprisonment with or without hard labour for a term not exceeding 12 months.
Query: Please comment on the rights of a licensed firearm holder after lawfully discharging his/her weapon.
Other than in lawful protection of person or property, a licensed firearm holder may also discharge his/her weapon (within 40 yards of a public place or road) in the lawful shooting of a trespassing animal, with the permission of the minister, or under the direction of some civil or military authority authorised to give such direction.
Be reminded, however, that whether the use of one's firearm was lawful will often be a matter for the court to determine, as explained in my last column. Once a court of law determines that the use is lawful then that is the end of the matter. Where the discharge was otherwise permitted by the Act, however, then, if questioned, I would expect that the firearm holder would simply have to establish to the police that the discharge was permitted under the Firearms Act and that should be the end of the matter. For instance, therefore, if the firearm holder discharged his firearm because he was authorised to do so by the minister of national security, then, if challenged by the police, all the shooter would have to do would be to show the police his permit from the minister to discharge his firearm and that should be the end of the matter. Unfortunately, however, in many instances, the issue will turn on whether the discharge was indeed lawful and that will always be a court matter.
Query: Can the police stop and search vehicles for firearms?
Very often we argue that the police has no powers to do random searches. In the Gary Hemans v Attorney General case, Justice Batts said that Section 58 of the Road Traffic Act gave the police no such authority.
However, Section 42 of the Firearms Act clearly empowers the police to stop and search, without warrant, any vehicle and person within that is suspected to be carrying a firearm. In such cases, however, the police must be careful that the suspicion is not arbitrary, but reasonable.
In the Gary Hemans case, Justice Batts found it totally unacceptable that the police had stopped and searched the claimant's car, "based on the fact that cars with similar features are often stolen and used in the commission of crime".
Justice Batts then went on to state that this rationale would be no different than saying that an individual walking on the road bears "similar features" to the majority of persons convicted of crime, e.g., "He is of dark complexion and wearing shorts below the waist".
The Act empowers the police to stop and search vehicles and the occupants thereof who may be suspected of carrying guns, however, such suspicion should be reasonably based.
- Shena Stubbs is an attorney-at-law and legal commentator. Send feedback to Email: firstname.lastname@example.org