Sheriff’s deputies responded to a domestic violence report in Northwest Missouri.
They restored peace in the time-honored way: by removing the husband in handcuffs. They also removed all household firearms, for the protection of the wife, even though the husband was in jail. They also removed a revolver from a lockbox, a revolver the wife kept for her personal protection. They insisted that the husband might have access to her lockbox, the husband they had just taken to jail.
It was soon determined that no crime had occurred and no charges were filed. The couple attempted to recover their guns. The property room sergeant raised objections and when these grew ridiculous, referred the matter to the sheriff. The sheriff claimed that he could not return them without a release from the prosecutor. The prosecutor was asked for a release and responded with a form letter stating that no charges had been filed and the couple’s “property” could be released. The sheriff protested that this was not enough because guns were different from property. The prosecutor was again approached and replied that guns were indeed different from property. He did not cite any legal authority for this conclusion for the very practical reason that there was none. In fact, Missouri law requires that firearms be returned to the owner at the end of any prosecution, unless the owner was convicted of a felony.
The couple sought legal counsel who advised that there were two basic courses of action; a replevin suit designed to obtain a court order for the return of their property or a federal “1983” suit for deprivation of property without due process of law. After discussing the advantages and disadvantages the coupled selected replevin. It is possible to file a petition in mandamus to force the return of property. However mandamus is designed to force a bureaucrat to perform a non-discretionary act. This confines the court order to requiring that routine matters be done in a routine manner. This requires the court to determine that an act is routine and what routine processing might be. The courts have no expertise in these areas. It is best to confine the inquiry to what party has the superior claim; this is the strength of a replevin action.
A petition was filed. The sheriff’s office was sent discovery requests demanding they set out in writing every reason for withholding the guns. The prosecutor was subpoenaed to testify concerning his unique view on guns as property. When a trial date was scheduled, the county’s lawyer called to ask when the couple would like to pick up their guns.
Guns come into possession of law enforcement in a variety of ways. They have been seized for “ballistic testing,” recovered from thieves, seized on nebulous “safety” grounds after fire department or paramedics enter a home, or the ever-popular “investigation.” Guns may be held as evidence during lengthy trials and appeals. A Missouri gentleman lost an elderly revolver from his collection. It was recovered by the Highway Patrol, which demanded that he obtain a transfer permit before they would return it. The Highway Patrol maintained this position despite a Missouri Attorney General Opinion and case law, stating that no such permit was necessary to recover firearms from law enforcement. Some law enforcement organizations have insisted that NICS requires gun owners to pay for a background check before recovering their guns. No such provision exists in NICS which only applies to the purchase of guns from licensed firearms dealers and recovery of guns from pawnbrokers. Some departments demand that the claimant prove ownership of the gun, and do not accept police reports documenting seizure from the claimant as proof. This is another very good reason to keep a record of guns, to include serial numbers, in a safe place. Bills of sale are often demanded regardless of the age of the firearm. Very often the agencies do not bother to demand unnecessary action, they simply do not reply to requests to return the property. The City of New Orleans illegally confiscated firearms during Hurricane Katrina, denied they had done so, then denied they had the guns, and when repeatedly caught lying demanded proof of ownership from claimants calculated to discourage the most hardy hurricane survivor. By the time the National Rifle Association had taken over the process, the guns were largely rusted beyond repair. It is not wise to rely on good faith.
An action in replevin is a request that the court order the return of the described property. It may be aimed at private parties as well as the government. States typically have laws governing these actions and the court system may have its own rules. It must be filed in the court having jurisdiction over the person holding the property. It must usually be filed in the circuit court where pleadings are more formal. Small claims courts usually are confined to money judgments although they may be appropriate to demand the money value of the guns held. A demand for the cash equivalent may cause the release of the property in settlement. As a practical matter, if a federal agency has the property, the action must be filed in federal court. The BATF has its own pamphlet on recovering property.
The suit must be served on the person in charge of the agency holding the property. Usually this is the chief or sheriff, but may be a civilian police board. It must plead ownership of the property and that it is being held without just cause or excuse.
Replevin actions are confined to the return of the property. They may award the filing fee to the prevailing property, but that is all. This means that the agency takes very little risk in illegally holding guns. They rely on the fact that attorney fees typically exceed the value of the gun.
A “1983” suit is different. It is a federal lawsuit authorized by 42 U.S. Code §1983 for denial of federally protected civil rights. In the case of illegally held guns, this would be a deprivation of property without due process of law under the 5th Amendment to the U.S. Constitution. It may also involve unreasonable search and seizure under the 4th Amendment. It must always plead a violation of the 2nd Amendment in light of the Heller and McDonald rulings from the U.S. Supreme Court.
The seizure must also represent a policy by the agency. It is unlikely that an agency will publicly state its policy to steal guns and to harass, annoy and stonewall efforts to get them back. Such a policy may be inferred from an absolute refusal to respond to requests for release of property, the most common such strategy, or that guns do not represent property that can be returned to a citizen.
Federal courts do not wish to be bothered if some state court, administrative agency, department or nursery school has procedures to resolve the matter. Generally, this is as it should be. However they often seize on this preference to dismiss 1983 suits for failure to exhaust administrative remedies before resorting to federal courts. Two recent 1983 cases involved gun owners who transported handguns through the New York City airport because their flights had been diverted to that city. In accordance with federal regulation they displayed their guns to the ticket clerks and were arrested for possession of firearms without a state license. The parties sued citing their right under 18 U.S. Code §926A to transport unloaded and inaccessible guns through all the 50 states, District of Columbia, Puerto Rico and Guam so long as the possession is legal in the beginning and ending states. The courts ruled that the parties had no right to sue under 18 U.S. Code §926A, that the airport police could not possibly know if gun possession was legal in the origin and destination states, and the parties had failed to exhaust their administrative remedies. The courts did not say what administrative remedies might be available to a person being arrested.
The attraction of a 1983 suit is money. It is possible (if just possible) to be awarded punitive damages. It is also possible to be awarded attorney fees. Plaintiffs may receive one or both of these awards. Bad conduct ends when it becomes painful or expensive. Painful is not legally possible. In a 1983 action expensive is possible. The purpose of punitive damages is to deter the guilty party from like conduct in the future.
Replevin is a faster process which may result in immediate release of the property. A 1983 suit takes longer but holds the prospect of financial revenge.
Guns will be held by law enforcement for good and sound reasons. When those reasons expire it is our Constitutional Right that they give them back.
[ Kevin L. Jamison is an attorney in the Kansas City Missouri area concentrating in the area of weapons and self-defense.]
Please send questions to Kevin L. Jamison 2614 NE 56th Ter Gladstone Missouri 64119-2311 [email protected]. Individual answers are not usually possible but may be addressed in future columns. This information is for legal information purposes and does not constitute legal advice. For specific questions you should consult a qualified attorney. This article was originally posted at https://www.usconcealedcarry.com/blog/give-it-back/