Wednesday, January 27, 2016

Police Took My Guns. How Can I Get Them Back?


The pen > the sword, but the Beretta M9 > the pen. 

Police often seize firearms during criminal investigations.  Today's post is about the specific process that must be followed in California before the police can return those guns to their lawful owner. 

Like all property that police seize, your guns will be held in an evidence locker at the police station for the duration of their investigation.  Once the investigation is completed, police will prepare reports to document their findings.  They will submit those reports to the DA for review and potential filing of criminal charges.  If the DA decides to charge someone with a crime, the guns could be used as evidence at trial.  If no charges are filed, then you might be eligible to apply for the return of your weapons.  

I say "you might be eligible", because there are a lot of different factors that come into play when we're discussing guns in California.  It's been said before, but it's worth repeating, that California has some of the most complicated, restrictive gun laws in the United States. It can be difficult to determine whether or not a particular person is eligible to possess weapons, whether or not a weapon has been illegally transferred or modified, and whether or not a weapon technically meets the definition of a "short-barreled rifle" or "assault weapon", etc.

To assist the police in determining whether or not someone is eligible to possess firearms, anyone who requests the return of his or her guns from the police must complete a "Law Enforcement Gun Release Application".  That application is available for download here. There is a $20 fee for processing the application, but the fee is waived if the lawful owner had previously reported the firearm as stolen.  

Where do I start if police are holding my lawfully-acquired guns?

To start the process, you must complete the LEGR application, available at the link above, and mail your application to the California Department of Justice. The DoJ will use the information that you provide to determine whether or not you are eligible to possess firearms under state and federal law. You will receive a "determination notice" by mail.

Your "determination notice" is only valid for 30 days, so you should immediately take your letter to the police agency that is holding your firearms.

Even after you receive a determination letter indicating that you are the lawful owner of the firearms and that you are legally permitted to possess them, police might still refuse to release the guns. This is because the police have no way of knowing whether or not the firearms are still needed as evidence in a pending criminal case. To prevent the potential loss of valuable evidence, many local law enforcement agencies have policies of never releasing property unless they are presented with a court order to do so.

I've completed the LEGR application and received my "determination notice", but police are still refusing to return my guns.  What now?

The next step may be to get the courts involved. You (or your attorney) can file a "motion for the return of property" in the appropriate court.  If you can demonstrate that you are the lawful owner of the property, and that the property is neither contraband nor evidence in a pending case, then a judge may order the police to return that property to you. This is the DA's opportunity to explain whether or not the weapons are needed as evidence, or if the government has any other interest in preventing the return of your firearms.

There are lots of technical requirements for serving your motion on the DA and scheduling a hearing with the court, and I won't waste too much time here with boring details. Those are things that your attorney should understand.  If your lawyer does not know how to file a routine motion in criminal court, have him or her call me and I will explain it.

Keep in mind that your "determination notice" is only valid for 30 days, so it's important to get working right away.  It can take weeks to schedule a hearing on the motion for return of property, so don't waste any time once you receive your letter from the Department of Justice.  It's probably advisable to get your attorney involved from the earliest stages so that all necessary paperwork can be completed within the appropriate time frame.

If you or a loved one has questions about how to recover your firearms after they've been seized by the police, call us for a free attorney consultation.  (714) 505-2468.  Ask for John.  Thanks for reading.

Santa Ana Gun Lawyer