Legalities of guns confiscated by LEO

[Sniper X]

So, I heard some disturbing discussion on the AM talker here in NM this week. After the kid got arrested at school with his threat and AK we had a discussion about the whole process and were talking about what might happen if he either got released without charge, or was charged and ended up getting thrown in jail.

Anyhow, the comment kept comming up that the police here and in other cities normally NEVER give guns back to the rightful owner even if no charges are either brung up or if the person gets acquitted! So, what they were saying is that if the cops confiscate your weapons for any reason, they never give them back and they end up destroyed!

Have any of you guys had this happen or known anyone who has? Sound criminal to me on the LEOs part. I personally know a guy who said he had a gun confiscated because his exwife to be told the police he threatened her even though he didn't and when she eventually dropped the charges saying they were fraudulent and that she had made them up to "get back at him" the cops still after three years have NOT returned his weapon! He has never been arrested for anything else, and never convicted of any crime at all.

 

[rogerxd45]

idaho has a law saying if your not found guilty you get your gun back, i cant find it right now but it is there

 

[zxcvbob]

One of the perqs of being the Police Chief is you get to keep the "pick of the litter" from the evidence room (it may be illegal, but who's gonna arrest the chief?) How corrupt the department is determines how far down this trickles and if *any* guns ever get returned.

 

[armoredman]

Keeping items taken with no crime committed, and no court order disallowing you your rights, is acrime in of itself. Involve higher authorities, county sherriff, state police, etc.

 

[El Tejon]

Yes, deal with situations like this from time to time. I hear about these cases and I always wonder what the guy's attorney was doing. Out playing golf? Campaigning for office?

Have your attorney file a motion (I entitle it "Motion for Replevin" or "Motion for Return of Property"), draft an order of what you want the judge to say to the Sheriff (PD, state po-po, what have you), file your motion and have the judge rule. Some states have statutes for this situation, so start there and then go file your motion.

 

[ants]

I asked the attorney who helps my boss at work (contracts, lawsuits, insurance claims, employee manual, etc.).

In the case of confiscated property of any sort (including guns) he said it's normal to file a petition or motion in the appropriate court to have the property returned. If the defendant is not charged or is found not guilty, in our state the petition is granted in nearly every case, unless possession would be unlawful (like a felon wanting his gun back). If the defendant is found guilty, state law allows the judge to deny the petition.

He said he gets guns back to their owners all the time, but it's never front page news so we never hear about it. If return of property isn't happening in your state, that would be unusual.

He made one comment about a Chief of Police taking his pick of guns in the evidence locker: If your gun is confiscated, report it to the State as a stolen gun. They never cross reference stolen gun reports with evidence descriptions. When the Chief is caught with the gun in his possession, he gets a felony for receiving stolen property.

 

[TAB]

here in CA, I have only known one person to get thier guns back. He just happend to be a lawyer and had a client go crazy on him and file a restraining order. Long story short, 6 months and 100s of hours before he finally got them back.

 

[Deanimator]

Yes, deal with situations like this from time to time. I hear about these cases and I always wonder what the guy's attorney was doing. Out playing golf? Campaigning for office?

I have the same reaction.

Any lawyer who didn't zealously pursue his client's interests in such a matter should be sanctioned by his state bar. Not even ATTEMPTING recovery of property wrongfully withheld sounds like malpractice to me.

Now I suspect that in some of these cases where that really happened, the persons involved may have been under some disability already and let the gun go in lieu of prosecution for that.

In a case where the police actually did try to unlawfully retain private property, there are all kinds of hammers you could drop on them. I'd have my lawyer set a date certain by which my property MUST be returned, AND IN ITS ORIGINAL CONDITION. If they refused or failed to respond, my next stop would be the local BATFE office. I loathe them, but they'll go after ANYBODY, just because they can. I'd make CERTAIN that they understood that I firmly believe that this is a pattern of behavior by that police department and that I believe they might be trafficking in stolen firearms. I wonder how that department would like a thorough audit of their evidence room(s)? I sure hope they can account for EVERY firearm they've EVER confiscated.

NOBODY wants a BATFE investigation, not even the cops.

 

[musher]

I suspect a lot of folks when faced with the choice of hiring and paying a lawyer vs walking away from a $500-$600 gun, decide the cheapest option is to let the thing go and just buy another.

 

[Sniper X]

Musher, that is the point I made to him and we discussed of course the police getting away with basically a felony of keeping someones rightful property illegally. Of course the easy way out would be to go buy another gun, ut there is the whle principle of the thing.. Plus unfortunately if this ever hapened to me, none of my 1911s are only worht 600 dollars!

 

[GRIZ22]

One of the perqs of being the Police Chief is you get to keep the "pick of the litter" from the evidence room (it may be illegal, but who's gonna arrest the chief?) How corrupt the department is determines how far down this trickles and if *any* guns ever get returned.


I realize many jurisdictions require a motion to be filed to return seized property when no crime was committed. If the police keep them for themselves or the Chief gets "first pick" this sounds to me like a Federal civil rights violation. Misfeasance under color of the law.

 

[brighamr]

Not to bash LEO's of course, but in CA they are notorious for never giving guns back. Look up every gun related case in the last 10 years, maybe 1 person received their firearms back (doesn't matter what the charge was)

 

[kurtmax]

If I were a Chief I wouldn't take guns that I wanted. That's violating a multitude of laws both federal and local. Yeah, nobody is ever going to catch me, but if they do I don't want to go to Federal PMITA Prison...

 

[blackcash88]

Heh, someone's been watching too much Office Space.

 

[MechAg94]

You can file those motions and/or take action on some of these issues without a lawyer as well. I am sure it takes some persistence to do it and good record keeping and you shouldn't expect it to happen overnight.

 

[blackcash88]

Doesn't do much good if they automatically destroy them.

 

[Ergosphere]

Not to bash LEO's of course, but in CA they are notorious for never giving guns back.

It's actually CA state law that you have to pay money (a substantial amount, IIRC) to apply for the return of a firearm.

 

[Strings]

This is a large part of the reason I have not only a listing of my guns with make/model/SSN, I also have pictures of each and every one with an inset of their SSN...

 

[blackcash88]

Your guns have an SSN? Where do they work?

I do the same thing, but I record the serial number.

 

[jaholder1971]

Folks,

My late father was a cop and ran his department's property and impound for several years before he retired.

The way it was explained to me: Once a piece of property is entered into evidence it's less under the control of the police and under the control of the prosecutor and the court system. The police are nothing more than caretakers at that point.

At this point it doesn't matter if what kind of property it is, guns, tools, etc.

The only way many departments will return property at this point is either by order of the DA or an order of the courts. Sometimes the judge will do this on his own, sometimes the lawyers have to request it and sometimes non return of evidence is a quiet part of a plea bargain or dismissal. So quiet that the defendant knows nothing about it.

I'm less concerned with cops stealing property from impound than I am court appointed defense attorneys obtaining court orders to seize a client's property as part of payment rendered. Dad saw a lot of the good firearms leave his lockers that way.

 

[mekender]

if the crime you were charged with involves a firearm, then its probably going to be considered evidence for a while... if the charges are dropped or there arent any filed, then its entirely possible that the PD would retain the weapons as evidence in an ongoing investigation... what ive read is that some states can hold evidence in an investigation for up to three years...

 

[coloradokevin]

We typically give the guns back if charges aren't filed, or the party is found not-guilty.

I can think of one significant instance recently where this wasn't the case:

We get a call of a guy waving a gun around. Show up to learn that the home owner had basically menaced a process server when he knocked on the door. Process server didn't really care if we filed charges or not, he just wanted to serve his papers, and let us know that the guy was crazy.

Anyway, the suspect is practically crying and scared when we contacted him... I think it was a solid bit of dementia going on.

He talks about his RKBA, and how we are going to take his guns away and put him in jail, etc... Obviously the menacing issue could have led to this, but I was still trying to keep things calm. Therefore, I (stupidly) mention, "well, hey, it isn't like you are a felon or anything is it?". His response was "yeah, I am".

So, we clear the guy (who was 85ish years old), and after a good bit of research learn that he was a previously convicted felon, on a robbery case from three decades ago. We contacted our inter-agency ATF guy for advice, and came to a workable solution:

1) None of us wanted to throw charges on an 85 year old guy who was in failing health, despite the two obvious issues he could have faced (that is, menacing and Possession of a weapon by a previous offender).

2) None of us wanted to leave the weapons with a guy who was obviously a bit mentally deficient, particularly given the circumstances of our contact with him.

Ultimately we confiscated the weapons, and had our detective handle the investigation. We didn't file charges, and the suspect agreed to sign his weapons over to the department.

Now, some folks would take this to mean that we "illegally confiscated" this guy's guns. We look at it as a win-win situation where everyone was happy (we removed the guns from an unstable person, which made the victim happy. Suspect was happy because he wasn't going to jail on a minimum of two felony charges. And we were happy to find a solution that we could all sleep with at night. Everyone won on this one).

 

[Jim K]

If you are ever in trouble over a gun, or are a gun owner under any other charge, be damned sure of your attorney.

Most criminal attorneys are programmed to keep the bad guy out of jail, period. They don't care if they add to his record with a guilty plea, a no contest, or a PBJ, just so he walks (and can "earn" the money to pay the attorney). For most of their clientele, a long record is a matter of pride and a guy who stays out of prison on a murder rap is a hero.

But for most of us, one conviction results in no more guns, plus maybe loss of job, etc. If your attorney doesn't give a sh*t about that, get a new one, quick, or you will end up with 20 years and your lawyer bragging about how he got it down from 30.

Jim

 

[Aguila Blanca]

Well played, Kevin.

As a philosophical musing, is a confiscation ever illegal if possession of the confiscated item by the original possessor was illegal anyway? That question may call for a different response on legal terms than on moral and philosophical terms, I suspect.

 

[marsofold]

Back around 1980, my .45 Colt Combat Commander was confiscated by the police without any charges being filed. Was told a court order would be needed to get it back. So I did. At the time it cost $150 for the lawyer and $150 for court costs. At the hearing the only question the judge asked was "Were any charges filed relative to the weapon?" After a "No" answer, the order was approved and issued. I received a paper copy of it, which I handed to the local Chief-Of-Police. He harumphed, read every single word of it, then told me that I really didn't need to be doing a court order. I responded that the fact that it was still in their possession proved otherwise. The gun was handed back to me and I was told that I had three hours to get it home...