Pistol confiscated and police will not return it?

[Ralph III]

Hello All,
My co-workers $700.00 pistol (stainless Ruger .22) was confiscated 2 years ago by the local police department (rural) and they refuse to return it. Any insight would be appreciated.

This is what occurred:

His wife's adult son, who has a prior felony conviction, took the pistol without permission and was walking down the road in their neighborhood. I think he was headed toward a large wooded area in order to shoot it. It's a rural area and open carry/shooting is legal, btw. Anyhow, one of the neighbors must have gotten worried and called the police. The police ended up confiscating the pistol from the step-son because he has a prior felony. My co-worker, who is the rightful owner, has been trying to get his pistol back for two years now but they will not release it. No charges have ever been filed and the police just say it is under investigation.

What steps can he take to get his pistol back? As noted, he is the legal owner and it was taken without his permission, most assuredly. He lives near Bayou La Batre, Al. which is within Mobile county Alabama.

Thanks,
Ralph

 

[lemaymiami]

I'm not a lawyer - but did run a police department's property room for a few years... My usual advice for anyone in that position is to retain an attorney who will seek a court order to have the weapon released to its rightful owner... The practical problem you'll face is that your attorney's fees may come near to the value of the weapon in question.... Good luck and welcome a working attorney's take on this kind of situation...

 

[whm1974]

That is the best thing the OP coworker can do, but like @lemaymiami said the lawyer fees may be the same or more then the pistol is worth. Did the coworker report the gun as stolen as soon he found it out it was? If the case is under investigation, it is very likely he will not his property back until after it is finished anyway.

 

[skeeterfogger]

If the step son (felon) lives in the same house he won't get it back.

 

[shootstraight57]

When I was on the job and confiscated a weapon not used in a crime I would always tell the person or persons that they need a letter from the D.A. or Judge to release the weapon to them. This will admonish the department from any further crimes if committed from using the gun.

 

[JN01]

Still investigating two years later? BS. I'd be willing to bet the gun was either destroyed or someone took it home with them.

 

[TonyAngel]

For a $700 gun, it would be cheaper to make the son buy him a new gun. That would be the practical approach.

As for what can be done procedurally, you haven’t provided enough information.

 

[buddyd157]

Hello All,
My co-workers $700.00 pistol (stainless Ruger .22) was confiscated 2 years ago by the local police department (rural) and they refuse to return it. Any insight would be appreciated.

This is what occurred:

His wife's adult son, who has a prior felony conviction, took the pistol without permission and was walking down the road in their neighborhood. I think he was headed toward a large wooded area in order to shoot it. It's a rural area and open carry/shooting is legal, btw. Anyhow, one of the neighbors must have gotten worried and called the police. The police ended up confiscating the pistol from the step-son because he has a prior felony. My co-worker, who is the rightful owner, has been trying to get his pistol back for two years now but they will not release it. No charges have ever been filed and the police just say it is under investigation.

What steps can he take to get his pistol back? As noted, he is the legal owner and it was taken without his permission, most assuredly. He lives near Bayou La Batre, Al. which is within Mobile county Alabama.

Thanks,
Ralph

1) have your co-worker buy a new gun.

2) kick out the son, and make him live on his own.

3) if the boy is not HIS son, but as i read it, the idiot is the wife's son, as from another marriage? and she will not kick him out?

4) then move out, no one is worth what the future will bring with a felon living in the house.

5) no good can come from this felon living under that roof.

 

[buddyd157]

For a $700 gun, it would be cheaper to make the son buy him a new gun. That would be the practical approach.

As for what can be done procedurally, you haven’t provided enough information.

depending on what state he lives in, (like here) some lawyers get $250 per hour, some i have dealt with charge $500 per hour. (and other states start higher)

not worth trying to get it back.

 

[Frank Ettin]

...His wife's adult son, who has a prior felony conviction, took the pistol without permission and was walking down the road in their neighborhood....

The best, and perhaps only, answer was in post 2. The OP's friend should consult a lawyer.

The stepson could face serious federal charges, and the OP's friend (and/or the friend's wife) could also face serious federal charges depending on what actions they took, or failed to take, to prevent the stepson from having access to the gun.

See, United States v. Huet, 665 F.3d 588 (3rd Cir., 2012), in which the gun a prohibited person was charged with illegally possessing was not secured against the prohibited person's access, supporting both the prohibited person's conviction for unlawful possession of a gun and the indictment of his cohabitant. From the opinion (at pg. 593, emphasis added):

...on June 6, 2008, a valid search warrant (the “search warrant”) was executed on the couple‟s Clarion County home. Agents seized an SKS, Interordnance M59/66 rifle (“SKS rifle”) from an upstairs bedroom.

Although Huet is legally permitted to possess a firearm, Hall was convicted in 1999 of possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d), and is therefore prohibited from owning or possessing a firearm. After being informed of the raid, Huet allegedly told investigators that the guns in the house belonged to her and that it was not illegal for her to purchase weapons. Despite Huet‟s assertions that she alone possessed the SKS rifle, the Government sought and obtained an indictment charging Hall with illegal possession of the weapon, and Huet with aiding and abetting Hall‟s possession....

So the gun Hall, a convicted felon, was indicted for unlawfully possessing, belonged to his cohabitant, Huet. It appears to have been undisputed that Huet could lawfully possess firearms. Nonetheless, she was indicted for aiding and abetting Hall's unlawful possession of gun because Huet's gun wasn't secured against access by Hall.

 

[JERRY]

you will need a court order for the gun's return. they will either charge him and keep the gun as evidence or they will not charge him and release gun upon order from the court.

 

[MCFLYFYTER]

It's kinda hard to argue that you gave a felon access to your firearm, but now you want it back.

Should have either reported it stolen, or just let it go with no charges.

 

[whm1974]

The best, and perhaps only, answer was in post 2. The OP's friend should consult a lawyer.

The stepson could face serious federal charges, and the OP's friend (and/or the friend's wife) could also face serious federal charges since the stepson apparently was able to access the gun.

See, United States v. Huet, 665 F.3d 588 (3rd Cir., 2012), in which the gun a prohibited person was charged with illegally possessing was not secured against the prohibited person's access, supporting both the prohibited person's conviction for unlawful possession of a gun and the indictment of his cohabitant. From the opinion (at pg. 593, emphasis added):

​

So the gun Hall, a convicted felon, was indicted for unlawfully possessing, belonged to his cohabitant, Huet. It appears to have been undisputed that Huet could lawfully possess firearms. Nonetheless, she was indicted for aiding and abetting Hall's unlawful possession of gun because Huet's gun wasn't secured against access by Hall.

Gun owners should not allow felons to live with them and in any case keep all firearms lock up.

 

[RickD427]

Please check out Frank's posting above. This situation is gonna be covered by Federal law and Alabama law. I can't speak to Alabama law, I will speak from the perspective of Federal law and California law.

The pivotal question here is whether the mother (or step father) shared possession of the weapon with her son, or whether the son "stole" the weapon from his mother and step-father.

If the mother (or step-father) did share possession with the son, then there is potential criminal liability in the manner that Frank explained.

If the mother (or step-father) is the victim of a theft, then he/she bears no criminal liability (unless Alabama has a statute criminalizing such).

When LEOs are presented with such pivotal questions, we look at the circumstances to determine which is the likely case. The key questions here are: 1) What measures were taken to secure the firearm, and specifically to prevent access by the prohibited son? 2) Who's efforts produced the defeat of those measures? and 3) Did the owner take the actions expected of a crime victim? Was a theft report filed are they cooperating in the prosecution efforts?

If the answers lead to a conclusion of shared possession, I don't see the weapon ever being returned. In both federal and California state actions, the weapon would be destroyed as an instrumentality of a crime.

If the answers lead to a conclusion that the weapon was "stolen", then it's still gonna remain in police custody, as evidence, until the criminal case is concluded. It sounds like the police may be "dragging their feet" on the criminal case, but they can do that (up to the limit of the Statute of Limitations. That's five years on federal charges and whatever Alabama law provides on the state charges).

It is possible to civilly sue for the weapon's return, but as others have pointed out, that's gonna be expensive, and probably would not be successful so long as criminal charges are possible. In a civil case, the moving party generally has the burden of proof. That means your co-worker is gonna have to convince the judge that the weapon was not the instrumentality of a crime and was not evidence of a crime.

It's also quite likely that the weapon has already been destroyed. Under California law (you gotta check for Alabama's comparable law), if a weapon becomes "abandoned" while in police custody, it goes to destruction.

 

[Robert Highhawk]

Call the states district attorney

 

[Speedo66]

If the gun owner cares about the (step)son, leave it be. If they haven't charged him in two years, there's a good chance they may not.

Stirring up the hornet's nest trying to get the gun back will not do good things for the son. He should quietly do his homework and find out how long the police have to charge someone in his state. While he's at it, he can also check the Federal statutes for the same reason.

If he doesn't care about the son, he should contact the local prosecuting attorney about getting the gun back, his gun used in a crime is still his gun. He may be asked to testify the gun was stolen.

 

[Frank Ettin]

...The pivotal question here is whether the mother (or step father) shared possession of the weapon with her son,...

"Sharing possession" might not be the most useful way in which to describe this pivotal question. The words imply someone having some sort of permission to have possession of the gun. But permission isn't necessarily a component of possession under federal law. See --

• U.S. v. Booth, 111 F.3d 1 (C.A.1 (Mass.), 1997, at 1):

  ...The law recognizes two kinds of possession, actual possession and constructive possession.... Even when a person does not actually possess an object, he may be in constructive possession of it. Constructive possession exists when a person knowingly has the power and the intention at a given time of exercising dominion and control over an object or over the area in which the object is located. The law recognizes no distinction between actual and constructive possession, either form of possession is sufficient. Possession of an object may be established by either direct evidence or by circumstantial evidence. It is not necessary to prove ownership of the object,...

  
  
• and U.S. v. Barron-Rivera, 922 F.2d 549 (C.A.9 (Wash.), 1991) in which Barron-Rivera's conviction for being an alien in possession of a firearm was affirmed without him even having had to touch a gun. Barron-Rivera's claimed reversible error in that the government failed to prove the necessary intent.
  
  The court of appeal noted, at 551:

  ...Barron-Rivera argued that the gun was in his wife's residence at the time he re-entered the United States and moved back into that residence. Accepting that contention, the district court, nonetheless, found that Barron-Rivera's possession of the firearm was voluntary because he permitted the firearm to remain in the house after he acquired knowledge of its presence....

  
  In affirming the conviction, the court of appeal found, at 551 -- 552:

  ...In other words, by continuing to reside in the apartment in which the gun was located, he voluntarily and knowingly possessed the gun...

The issue of parent/stepparent liability is more likely to turn on whether the stepson had physical access to the gun. For example, was it secured in a safe to which the stepson did not have the combination or key.

 

[herrwalther]

Still investigating two years later? BS. I'd be willing to bet the gun was either destroyed or someone took it home with them.

You would be wrong. Alabama has their own internal version of FBI called SBI, State Bureau of Investigations. They handle numerous cases like internal affairs for police departments, determining police jurisdictional disputes, and plenty more. They also handle the vast majority of firearm investigations in the state, as they have most of the state's ballistic laboratories. Large caseload + few agents means a slow turn around time for everything. Alabama also has a very wide definition of what classifies as civil asset forfeiture. So nearly anything associated with a crime can be confiscated and sent to SBI, which leads to the investigative backlog even further. SBI confiscated a piece of equipment from me that was used in a suicide of another individual with zero possibility of fowl play. I didn't get it back for about 18 months.

Advise. Get a lawyer that is well versed in dealing with property and property possessed by the state. You may have to check with some criminal attorneys as they have some experience with civil asset forfeiture.

 

[D.B. Cooper]

Hello All,
My co-workers $700.00 pistol (stainless Ruger .22) was confiscated 2 years ago by the local police department (rural) and they refuse to return it. Any insight would be appreciated.

This is what occurred:

His wife's adult son, who has a prior felony conviction, took the pistol without permission and was walking down the road in their neighborhood. I think he was headed toward a large wooded area in order to shoot it. It's a rural area and open carry/shooting is legal, btw. Anyhow, one of the neighbors must have gotten worried and called the police. The police ended up confiscating the pistol from the step-son because he has a prior felony. My co-worker, who is the rightful owner, has been trying to get his pistol back for two years now but they will not release it. No charges have ever been filed and the police just say it is under investigation.

What steps can he take to get his pistol back? As noted, he is the legal owner and it was taken without his permission, most assuredly. He lives near Bayou La Batre, Al. which is within Mobile county Alabama.

Thanks,
Ralph

Obviously, I'm no expert, and my first advice is to seek professional, legal counsel-if you think the gun or the principles behind the issue is worth it.

My gut instinct is to retain counsel and fight it to the Supreme Court if for no other reason than to oppose government abuse of the citizenry, although I really don't know under what legal challenge. The reality is that any legal challenge will cost farrrrrr more than the replacement cost of the gun. Economically, your friend is much better off simply chalking this up to a lesson learned (don't leave your guns unsecured and don't trust ex cons) and simply buy another gun.

 

[Master Blaster]

If your friend prods them enough, perhaps they will charge him with allowing a Felon access to a firearm, and he will lose the rest of his guns and his right to ever own one too. If the Stepson is charged with stealing the gun then his mom may want to pay $20,000 or so in legal fees and bail to fight the charge and not see her son in prison.

My advice is to swim away rather than kicking the sleeping great white shark in the head unless you want to lose an arm and a leg as well as the gun.

 

[whughett]

If your a NRA member see what services their legal department offers. As A Life member since 1972 that would be my first inquiry.

 

[Zerodefect]

It's gone. You owe your coworker $700.

Pay up and move on. You allowed a felon to get a firearm. That's not a bear you want to poke at.

 

[Arkansas Paul]

It's gone. You owe your coworker $700.

Pay up and move on. You allowed a felon to get a firearm.

Ummmmmmmmmmmmmmmmm...........................I'm confused.
Did you read the OP?

 

[whm1974]

It's gone. You owe your coworker $700.

Pay up and move on. You allowed a felon to get a firearm. That's not a bear you want to poke at.

The OP didn't borrow the gun. He is explaining what happen to his coworker.

 

[castile]

Take them to court. If they don't have a reason to keep it than by law they have to return it. Get an attorney and sue. They are hoping for you to walk away.