Tuesday, November 26, 2013
Legalized Theft of Guns
An anti-freedom policy has been spreading across United States police departments, the legalized theft of citizens guns. Recently, it occurred in Georgia. I am not talking about forfeiture laws. They are related but have been covered elsewhere.
This is a problem in many urban areas, and it is spreading. The policy is to impound guns, in extreme cases, all guns that officers come across, whether involved in any crime or not, then to refuse to return the guns until a judge issues an order to return them. As the attorney fees needed to obtain a court order can easily be 10 times what the gun is worth, most people do not bother. It is a form of legalized theft.
I first learned of this policy from students who were or who had lived in California. I had numerous students who had dealings with the LAPD. I started hearing stories about how guns were seized, even if there were no crime involved. If an officer came across a gun, it was seized, and it would not be returned until the LAPD received a court order demanding that it be returned. As hiring a lawyer to obtain a court order could easily cost thousands of dollars, very few people even tried. I also heard that some judges, who had a personal animus toward firearms ownership, simply refused to grant an order.
Here is a case related by a student: The student was stopped for a routine traffic stop. While stopped, the officer asked him if he had any guns in the vehicle. The student replied that he had rifles locked in the tool box that was attached to the bed of the pick up truck. The officer demanded that the student open the tool box, which he did. The officer then confiscated the rifles. The student was never charged with a crime, but the police refused to return the rifles unless they received a court order ordering them to do so.
This reverses the presumption of innocence and the presumption of ownership that goes with possession of an item.
In 2005, a California law was passed requiring people who had firearms impounded by police to fill out forms sent to the State government, and be certified as being eligible to legally own a firearm by letter, before the firearm can be returned.
Even with this state imposed certification, many departments are still requiring a court order before they will return lawfully owned property. SAF and Calguns settled a lawsuit against Oakland and San Francisco for refusing to return firearms.
Cleveland recently settled a case where they refused to return a firearm to the lawful owner.
In Arizona, a reform was passed to require issuance of a receipt in firearm seizures.
In Wisconsin there have been a number of settlements where guns have been returned, often with a cash settlement to cover lawyers fees, although these were primarily for illegal arrests involving firearms carry.
I have been told that police are reluctant to return guns because they fear liability if the firearm is subsequently used in a crime. While this is an extremely rare occurrence, it is easy to see how police might use this excuse to fail to take appropriate action.
One remedy is to educate the police as to their liability if they *fail* to return property to its legal owner. The lawsuits mentioned above are useful for that purpose. Often, a letter from an attorney, threatening legal action, can spark a desired response. Once, I was able to obtain the return of a firearm simply by showing up at the crime lab and asking about its disposition. I was asked if I was a lawyer. I noncommittally said that I had studied the law. I was immediately told that the firearm would be returned (and it was). Another solution is public awareness. Policies can be changed more easily than legislation. Public pressure and lawsuit settlements can result in a change of polices.
If your firearm is seized or impounded, insist on a receipt, then follow up with documented requests for the return of the firearm. Inform activists groups of the situation. This may lead to pro-bono legal action or necessary funding for the same.
I have encountered officers who think that impounding firearms and making their return difficult somehow "gets guns off the streets" and makes crime less likely. The passage of laws that mandate the return of firearms to legal owners and the sale, rather than destruction, of "found" firearms helps to short circuit that assumption. It reinforces the fact that firearms possession is a constitutionally protected right.
This is primarily a problem of police policy and attitudes. Most court actions result in the firearm being returned. The difficulty is that the owner should never have been forced to go through the legal process to have his property returned in the first place, or the firearm should never have been impounded to begin with. The conversion of police thinking about firearms from "contraband" to "constitutionally protected property" is what is needed to stop this form of legalized theft.
©2013 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch