W H E N F I R E A R M S A R E S E I Z E D B Y L A W E N F O R C E M E N T

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Christina Hamilton
5 years ago
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W H E N F I R E A R M S A R E S E I Z E D B Y L A W E N F O R C E M E N T PUBLIS HED BY THE L AW OFFICES OF BRUCE COLODNY By Bruce Colodny, The California Gun Attorney Revised & Copyright 2013 GunLaw.

These are questions that I am frequently asked.

1 W H E N F I R E A R M S A R E S E I Z E D B Y L A W E N F O R C E M E N T PUBLIS HED BY THE L AW OFFICES OF BRUCE COLODNY By Bruce Colodny, The California Gun Attorney Revised & Copyright 2013 GunLaw.com What happens when your firearms are taken into custody by a law enforcement agency? Can you retrieve them, and if so, how? If they are not returned, what becomes of them? These are questions that I am frequently asked. This article provides an overview of current California Law governing the seizure of firearms by law enforcement, the standards used to determine whether or not firearms will be returned, general advice on the return of seized firearms, and the lawful disposition of confiscated firearms. First, why are firearms seized by law enforcement? The most common reason is for use as evidence in a criminal case. Firearms may also be taken into custody for "safekeeping". For example, if a shooter returning alone from a range is injured in a traffic accident and is taken to the hospital by ambulance, the law enforcement officer investigating the accident will normally cause the contents of the vehicle to be inventoried. Any firearms found will normally be held by the property custodian of the law enforcement agency responsible for the investigation.

If your firearm is seized for use as evidence in a criminal case in which you are charged with unlawfully using it and you are convicted, subject to limited exceptions, it is deemed a nuisance and

2 If your firearm is seized for use as evidence in a criminal case in which you are charged with unlawfully using it and you are convicted, subject to limited exceptions, it is deemed a nuisance and not returned. If your firearm is used as evidence in a criminal prosecution against someone other than yourself, and you had no prior knowledge that it would be misused, the firearm"...shall be restored to the lawful owner, as soon as its use as evidence has been served, upon his or her identification of the weapon and proof of ownership, and after the law enforcement agency has complied with Section ". California Penal Code , which took effect on January 1, 2005, provides that a gun owner seeking the return of a firearm from law enforcement custody, must apply to the California Department of Justice for a determination that they are eligible to possess firearms. This is accomplished by submitting a Law Enforcement Gun Release Application ( LEGR ). This form can be downloaded at The form is completed by providing identifying information for the applicant and for all handguns sought to be released as well as the name, address and report number of law enforcement that has custody of the firearms. If you submit an LEGR, you should keep a copy and send the form by Certified Mail, Return Receipt Requested, so that if you do not receive a response within approximately 35 days, you will have proof that it was received by the Department of Justice. If your LEGR application is approved, you must retrieve your firearms within 30 days or you will have to submit another LEGR application. In addition to obtaining LEGR approval, in most situations, you should also expect that the law enforcement agency in possession of your firearms will require a certified copy of a court order directing their return to you.

3 What happens to firearms seized from you if you suffer a criminal conviction which results in the loss of your firearm rights? Your attorney may be able to obtain a court order for the release of those seized firearms which you lawfully possessed and did not criminally misuse. This type of court order usually directs the release of such firearms to a licensed firearms dealer to be sold for you, either on consignment or at auction. This will allow you to recover most of their economic value. The dealer s fee for liquidating your firearms will usually range from 20% to 35% of the selling price. As an alternative, your attorney may be able to obtain a court order directing release of the seized firearms to an eligible relative or friend. If your firearms are seized by law enforcement, you may need to document ownership. The best method is a receipt from the retail store which lists the manufacturer, model and serial number. If you cannot locate the original receipt, you may be able to obtain a copy from the retailer or alternatively, a copy of the Federal Form 4473 required to be completed at the time of sale. Further, if the firearm was a handgun purchased in California and required a waiting period, the Department of Justice will have a record which will be available to law enforcement. Proof of ownership is more difficult when the firearm was purchased from a non-dealer or brought into California when you moved from another state. If the firearm was stolen, a prior police report of its theft is helpful. If you lawfully purchased the firearm from a non-dealer, you should seek a written receipt from the seller along with a copy of their original receipt when they purchased it. (Note: if a

receipt is prepared after the fact, it should contain both the current date and confirmation of the approximate date of sale). You may need an attorney if your firearms are seized by law enforcement.

4 receipt is prepared after the fact, it should contain both the current date and confirmation of the approximate date of sale). You may need an attorney if your firearms are seized by law enforcement. There are many reasons why. If you have any concern that you unlawfully acquired or possessed a firearm that was seized, you should immediately consult a qualified attorney before taking any action on your own. If you were arrested or investigated by law enforcement but you have not been charged, statements made to law enforcement while requesting the return of your firearms may later be used against you in court. Even if your case was initially rejected for prosecution, your subsequent efforts to obtain the return of your firearms or statements that you made without legal representation, may result in a re-evaluation of your case resulting in the filing of criminal charges against you. What are your options when the law enforcement agency refuses to return your firearms and the value of seized firearms is less than the anticipated attorney s fees? If you have the financial ability and the principle is important to you or the firearms have sentimental value, you may decide to proceed even though the attorney s fees may exceed the value of the seized firearms. Depending upon the circumstances, California Law may provide for an award of attorney s fees, however, this may be a doubleedged sword, in that, the judge may be required to award attorney s fees to the prevailing party, so if you win and your firearms are ordered released, you are also awarded attorney s fees, but if you lose, you may be ordered to pay attorney s fees for the law enforcement agency which seized your firearms. A cost-benefit analysis should be considered before commencing court action to obtain the release of seized firearms.

5 The California gun owner should also be aware of, and attempt to, avoid common situations which often result in the seizure of firearms. If a family dispute escalates to the point that there is a law enforcement response, the police are likely to consider this situation to be a domestic violence incident and seize the gun owner s entire collection. Carefully handle any disputes with neighbors or their guests over common complaints such as loud music, parties or illegal parking. These situations frequently result in calls to the police or requests for restraining orders which may also result in the seizure of firearms or having restraining orders issued, requiring the gun owner to surrender all their firearms to law enforcement or to sell them to a licensed firearms dealer (see our article, Divorce, Restraining Orders and the California Gun Owner for more information). Be discreet with firearms when you are loading or unloading your vehicle and when you are cleaning a firearm, to prevent observation by a neighbor or passerby who may overreact and call the police. Finally, what happens to seized firearms that are not returned to the owner or released to a licensed dealer? Seized firearms may be destroyed, sold at auction to holders of Federal Firearms Licenses or retained for "...use in carrying out the official duties of the agency..." or delivered to the military. For those readers desiring further information, the California Statutes which govern the disposition of the vast majority of firearms seized by law enforcement are Sections 12028, and of the California Penal Code. There are also statutes in the California Health and Safety code which address the issue of firearms seized in controlled substance (drug) cases. DISCLAIMER: As this article is based on current California law. The information contained within is subject to change as a result of future court decisions and/or new legislation. For advice concerning a specific situation you should contact a qualified California attorney. As noted above, attempts to obtain the release of seized firearms without legal representation may have serious consequences and may result in criminal prosecution.

LAWS GOVERNING THE ACCOUNTING FOR PROPERTY SEIZED AND FORFEITED, CONFISCATED AND OTHERWISE OBTAINED (COUNTY AND MUNICIPAL LAW ENFORCEMENT)

LAWS GOVERNING THE ACCOUNTING FOR PROPERTY SEIZED AND FORFEITED, CONFISCATED AND OTHERWISE OBTAINED (COUNTY AND MUNICIPAL LAW ENFORCEMENT) OFFICE OF THE STATE AUDITOR Division of Technical Assistance August