"Losing" Guns as "Evidence"-Myth?

[pulicords]

All right, I got into this again on another forum and it still ticks me off to no end!!! Question: Is there any lawful justification for a police department to retain as "evidence" personally owned firearms, used in lawful self-defense, by persons (police or civilian) who lawfully possessed them at the time of occurence?

Since I first entered LE (30+ years ago), I was told by others (usually academy classmates with department issued firearms) that if they carried personally owned/department approved weapons and were unfortunate enough to be involved in a shooting with it, the weapon would be seized by the department "as evidence" and not returned to them for years, or worse (never). Since then, I have heard this story from civilians too, and it's expanded in scope from justifying the seizure as necessary for criminal prosecution, to being needed as possible evidence in some future civil proceeding. My call on this: Myth

While in the academy and in the years that followed, I always took advantage of my departments' policies that allowed officers to carry their own pistols or revolvers, provided they met departmental specifications. Many of my co-workers did the same and when these weapons were actually used in self-defense (during the course and scope of our employment), without exception they were temporarily surrendered, examined by firearms experts, and returned to the owners, usually within days of the incident(s).

As an investigating officer, I responded to several incidents where private persons used firearms legally for self-defense, that they owned legally, and possessed (at the time and place of occurrence) legally. My experience then (as with officer involved incidents) was that firearms (like any other evidence) can be seized and retained only so long as they were needed for the immediate investigation, and/or as evidence for pending criminal court proceedings. If the gun (or other items) wasn't needed for trial (in criminal matters), wasn't used unlawfully and wasn't contraband (ie: possessed unlawfully), then it was unjustifiable to retain it in our possession.

I have seen no legal authority that permits a police department to retain "as evidence" item(s) that a third party (ie: a wounded suspect or his survivors) might plan on wanting to use as evidence in future civil proceedings, without a court order requiring such action.

While unnamed "experts" regularly suggest that officers and citizens don't spend significant sums of money (on well made firearms), "because they could be held as evidence for years after being used in legitimate self-defense", the legal justification for this fear isn't just vague, (IMHO) it's non-existent.

Enough of my "rant"! My question posed to LEOs and others with personal knowledge and experience in this area:

1) Is there any legal right for a public agency (law enforcement) to refuse to return a privately owned firearm, used lawfully by it's owner, without clearly showing it's relevance as potential evidence in a pending criminal trial?
2) Does a police department have the right (absent a court order) to seize item(s) based on the belief they might be needed by someone else in future civil action?
3) How long can/should an agency refuse to return a personally owned firearm used by an employee, not accused of having committed any crime or violation of department policy?

[kckpd756]

I know of no such Laws that allow what you are describing. On my Dept we take the firearm, or any other weapon as evidence. It is returned as soon as the case is ajudicated. I was involved in an On-Duty Shooting. My sidearm was taken by the Dept and they furnished me with a replacement from the Range. My firearm was returned to me after the IA investigation was completed. I personnaly have never heard of my Dept not returning a weapon to a private citizen that had to use said weapon lawfully.
Here we buy our own duty weapons. There have been guys that get fired and they are still allowed to walk out of the building with their gun. Now the magazines and the bullets belong to the Dept so they take them.

[HCSO511]

Guns seized under these circumstances are always returned after the case is closed in my experience. I have seen several where the DA's Office sends down a notice stating the gun/s are no longer needed in the case and that they may be released to the owner.

I know its up to the owner to come collect their weapon and sign paperwork showing they received the weapon or items back. No one can just drive it out to their house and hand it to them as its necesary to document where the gun goes from our evidence room since it is someone's property.

[RoadKingTrooper]

1) Is there any legal right for a public agency (law enforcement) to refuse to return a privately owned firearm, used lawfully by it's owner, without clearly showing it's relevance as potential evidence in a pending criminal trial?
2) Does a police department have the right (absent a court order) to seize item(s) based on the belief they might be needed by someone else in future civil action?

No, not where I worked

3) How long can/should an agency refuse to return a personally owned firearm used by an employee, not accused of having committed any crime or violation of department policy?

I think that action would be covered by most states Theft statutes, which it would be if a refusal to return a weapon was found to be arbitrary and capricious.

[Smurfette_76]

I've seized them until the investigation is complete. During that time I do the ATF trace and background to see if they're able to have it back. Then it's returned.

[Nightshift va]

Safe keeping" is bogus if it's not related to that specific crime as part of evidence. Back in the late 90's when the Domestic Violence laws changed they actually use to make us take every firearm in a persons home owned by anyone arrested for domestic assault or under a protective order which is ludicrious because with these arrest also came a protective order which made the person leave the home anyway absent the guns and they finally changed it. I think more than worrying about violating peoples rights all the Chiefs assosciates complained to the attorney general that nobody had the resources to continue to store everyones guns so they changed the law so we didnt have to be gun collectors at every domestic and made it so you simply could not be in possesion of a firearm or purchase a firearm while under a protective order which is more reasonable then just roudnin up every gun in a house where the guy could not stay in anyway, and lets not be politcally correct here, most times it's the guys that have to go. And the guys are the one's who hunt and shoot and like firearms and own them.

[SgtScott31]

I know one officer who had his personal firearm stolen in TN. It was later used in a robbery. The suspect was caught along with the firearm. The officer got it back about 4 - 5 years later...

[SgtCHP]

Many courts take it upon themselves to declare the weapon unreturnable and order it destroyed. In that case it is remanded to the custody of the sheriff for carrying out the task. Generally speaking, in CA, any weapon used in a crime is destroyed.

A weapon (handgun), lawfully owned and registered with the DOJ, will be returned to the legal owner if it was used in a self defense case and no other issues, involving the owner, are outstanding.

Handguns, or those weapons that are listed on the restricted list (12000 PC), used in criminal activity may be returned to the rightful owner if that person is not a party to the criminal offense and the weapon was reported as stolen. In that case, the owner must petition the court to regain custody of the weapon.

However, chances are the court will order it destroyed just because, well, this is the "Peoples Republik of Kalifornia."

California Penal Code Section 1417 et al, covers the disposition of evidence held by the courts.

[Monkeybomb]

Here it is not up to the Agency to turn it back over to the person who used it in lawful defense of themselves. Its the DA's call as to what gets released and when on any potential criminal cases. I'm told but I have no personal knowledge that in the past some DA's have refused to release a firearm that was used in self defense if the subject died.

I do know we usually have our issue guns back in a month as long as the DA's find it was a justifiable shooting.

[David Hineline]

When I was arrested I got my gun back right after court was over the judge released it, even got my 6 cartridges back.

I know an Iowa county sheriff running for re-election came to our gun club to answer questions. One was about this. he said usually the guns were returned unless Iowa State Patrol needed one of the example guns for thier reference collection in DesMoines, then there was not much chance of getting it back.

I had a customer who had all his guns taken from the house when he called ambulance for his wife on a mental issue. She was taken to hospital and all guns were taken for safety. They divorced and he spent 30days in hospital later where durring that time local police had sent notice to come pick up the gun, since in hospital he did not get the notice and the guns went to state patrol where they never returned again as abandoned.

One Iowa dealer had a gun stolen from a show. 5yrs later he was notified by ATF the gun had been recovered in Chicago, and he was to contact a certain person there to get his gun back, the gun was never returned.

Lincoln NE dealer had two guns stolen in break in of store. One gun recovered in a traffic stop, took like 3.5 yrs to get his gun back.

Had a county sheriff who got jammed up because he was privatly selling guns that were reported stolen and his dept. recovered.

[PhilipCal]

Puli's post X-2. In Alabama, the weapon, department issued, personally owned, would be retained only for the required ballistic testing, related examinations, and returned to Officer/owner. Alabama is basically a pro-firearms state, so to the best of my knowledge this hasn't been an issue.

[LA DEP]

Never had an issue with getting my personal weapon back after an OIS.....I had it back in my possession (and cleaned too), no more than 2 days after the incident

[yellowreef]

Two days is lightning fast around here, but I'd say anywhere between a couple and several weeks depending on which agency is investigating, and the urgency of the case.

[LA DEP]

Two days is lightning fast around here, but I'd say anywhere between a couple and several weeks depending on which agency is investigating, and the urgency of the case.

It helps when it is your own departments' crime lab that has it, and is doing the processing....

[velobard]

Another aspect of this issue that I hear about is people being required to prove ownership of a gun with a receipt in order to be able to reclaim a weapon. Even if a gun is seized directly from that person, I have heard of accounts where the individual wasn't able to retrieve it because they couldn't produce a receipt.