Will Police Return My Firearms?

When police arrest persons possessing firearms, police often seize those firearms. Will police return those firearms to the owner? The answer is “maybe.”

  • Firearms As Evidence

Sometimes firearms are seized by police as evidence. For instance, where a person is charged with a crime involving the use of the firearm, such as armed robbery, felonious assault, or possession of a firearm while intoxicated, the firearm will be seized, tagged as evidence, and logged into the evidence room.

Under circumstances where the firearm is logged into evidence, the firearm will remain in the possession of police in the evidence room until the conclusion of the case. What if the firearm didn’t belong to the defendant? What if the firearm belonged to the defendant’s father, girlfriend, or even the victim of the defendant’s crime? Even when the firearm did not belong to the defendant, the firearm will remain in evidence until the conclusion of the case.
At the conclusion of the case, the prosecuting attorney may decide to release the firearm from evidence or may decide to retain the firearm in evidence pending appeal, which could last up to five years.

  • Firearms Seized But Not Evidence

Sometimes firearms are seized by police, but the firearms are not logged as evidence. For instance, where a person is arrested for drunk driving on the way home from hunting and the person’s hunting shotgun is properly cased and stored in the trunk of the car, the charges might not involve firearm crimes. Under these circumstances, the police will seize the firearm, but the firearm might not be tagged as evidence or logged into the evidence room.

  • Disposition of Seized Firearms

When police have possession of a seized firearm, police are required to follow Michigan statutes relating to the disposition of the firearm. The relevant statutes are MCL 750.239 and MCL 750.239a. I’ve inserted the text of those statutes at the end of this article for your review.

Essentially, any firearm used to commit a crime or unlawfully possessed is subject to seizure and forfeited to the State of Michigan. A firearm seized but not used to commit a crime or unlawfully possessed may also end up being forfeited to the State of Michigan if the owner of the firearm is not diligent in seeking the return of the firearm.

Police are required to notify a firearm owner of police intention to forfeit the firearm, which includes a check of the Law Enforcement Information Network (L.E.I.N.) database for lost or stolen firearms. After the required notice, the owner has 30 days to claim possession of the firearm. Where the owner of a firearm is not known, police may post intention to forfeit the firearm on a website and provide 30 days for an owner to claim the firearm.

Here’s a link to the Michigan State Police website providing notice of intent to dispose of seized firearms: http://www.michigan.gov/msp/0,4643,7-123-1878_1591_3503_4654-45376–,00.html

Once police have complied with the 30-day notice requirements, the police agency that seized the weapon may (1) sell or trade the weapon to a licensed firearms dealer and use the proceeds for law enforcement, (2) keep the firearm for law enforcement use, or (3) turn the firearm over to the Michigan State Police. The Michigan State Police may sell the firearm at auction or destroy the firearm.

Michigan’s former law provided that a firearm owner could petition in circuit court for return of a seized firearm from police. However, the statutes were amended in 2010 to provide all police agencies with blanket immunity for disposition of seized firearms. So, if police refuse to return a firearm to its owner and instead keep, sell, or destroy the firearm, the owner doesn’t have much recourse because police are immune from liability concerning disposition of the firearm.

  • Return of Firearms In Practice

I’ve experienced both abuses and honest dealings with police departments concerning disposition of firearms. On the abusive side, I’ve had clients charged with crimes just so police can keep the seized firearms. This happened in a case where a very nice pistol that was colored pink was desired by a member of the police force. When the owner of the firearm, who was not a defendant in the case, claimed return of her firearm at the end of the case, she was charged as an accomplice to the crime more than a year later. Of course, the plea agreement involved the firearm owner agreeing to relinquish her claim to the firearm in exchange for a dismissal of the criminal charges against her. I’ve also had cases where entire gun collections were seized and returned to their owners. One such case involved many guns seized from a defendant’s home during a domestic violence incident and returned to the defendant’s father, who owned the firearms.

If you own a firearm that police have seized in connection with criminal charges against you, your firearm will probably not be returned to you even if the criminal charges against you are dismissed. Prosecutors in many counties require forfeiture of firearms as a part of a plea agreement. However, there have been cases where I have achieved return of firearms for clients and their family members.

Sadly, most attorneys are unlikely to seek return of your firearms, and court-appointed attorneys won’t even consider seeking return of your firearms. Both Kymberly and I are proud firearms enthusiasts, and I am a member of the National Rifle Association and the Kalamazoo Rod and Gun Club. You can count on us to consider return of your firearms as an aspect of the litigation strategies and negotiations in your case.

Jeffrey M. Schroder

750.239 Forfeiture of weapons; disposal; immunity from civil liability.
Sec. 239.

(1) Except as provided in subsection (2) and subject to section 239a, all pistols, weapons, or devices carried, possessed, or used contrary to this chapter are forfeited to the state and shall be turned over to the department of state police for disposition as determined appropriate by the director of the department of state police or his or her designated representative.

(2) The director of the department of state police shall dispose of firearms under this section by 1 of the following methods:

(a) By conducting a public auction in which firearms received under this section may be purchased at a sale conducted in compliance with section 4708 of the revised judicature act of 1961, 1961 PA 236, MCL 600.4708, by individuals authorized by law to possess those firearms.
(b) By destroying them.
(c) By any other lawful manner prescribed by the director of the department of state police.

(3) Before disposing of a firearm under this section, the director of the department of state police shall do both of the following:

(a) Determine through the law enforcement information network whether the firearm has been reported lost or stolen. If the firearm has been reported lost or stolen and the name and address of the owner can be determined, the director of the department of state police shall provide 30 days’ written notice of his or her intent to dispose of the firearm under this section to the owner, and allow the owner to claim the firearm within that 30-day period if he or she is authorized to possess the firearm.
(b) Provide 30 days’ notice to the public on the department of state police website of his or her intent to dispose of the firearm under this section. The notice shall include a description of the firearm and shall state the firearm’s serial number, if the serial number can be determined. The department of state police shall allow the owner of the firearm to claim the firearm within that 30-day period if he or she is authorized to possess the firearm. The 30-day period required under this subdivision is in addition to the 30-day period required under subdivision (a).

(4) The department of state police is immune from civil liability for disposing of a firearm in compliance with this section.

History: 1931, Act 328, Eff. Sept. 18, 1931; CL 1948, 750.239; Am. 1949, Act 168, Eff. Sept. 23, 1949; Am. 1964, Act 21 Eff. Aug. 28, 1964; Am. 2010, Act 294, Imd. Eff. Dec. 16, 2010.

750.239a Disposition of seized weapon; immunity from civil liability; “law enforcement agency” defined.
Sec. 239a.

(1) A law enforcement agency that seizes or otherwise comes into possession of a firearm or a part of a firearm subject to disposal under section 239 may, instead of forwarding the firearm or part of a firearm to the director of the department of state police or his or her designated representative for disposal under that section, retain that firearm or part of a firearm for the following purposes:

(a) For legal sale or trade to a federally licensed firearm dealer. The proceeds from any sale or trade under this subdivision shall be used by the law enforcement agency only for law enforcement purposes. The law enforcement agency shall not sell or trade a firearm or part of a firearm under this subdivision to any individual who is a member of that law enforcement agency unless the individual is a federally licensed firearms dealer and the sale is made pursuant to a public auction.
(b) For official use by members of the seizing law enforcement agency who are employed as peace officers. A firearm or part of a firearm shall not be sold under this subdivision.

(2) A law enforcement agency that sells or trades any pistol to a licensed dealer under subsection (1)(a) or retains any pistol under subsection (1)(b) shall complete a record of the transaction under section 2 or section 2a, as applicable.

(3) A law enforcement agency that sells or trades a firearm or part of a firearm under this section shall retain a receipt of the sale or trade for a period of not less than 7 years. The law enforcement agency shall make all receipts retained under this subsection available for inspection by the department of state police upon demand and for auditing purposes by the state and the local unit of government of which the agency is a part.

(4) Before disposing of a firearm under this section, the law enforcement agency shall do both of the following:

(a) Determine through the law enforcement information network whether the firearm has been reported lost or stolen. If the firearm has been reported lost or stolen and the name and address of the owner can be determined, the law enforcement agency shall provide 30 days’ written notice of its intent to dispose of the firearm under this section to the owner, and allow the owner to claim the firearm within that 30-day period if he or she is authorized to possess the firearm. If the police agency determines that a serial number has been altered or has been removed or obliterated from the firearm, the police agency shall submit the firearm to the department of state police or a forensic laboratory for serial number verification or restoration to determine legal ownership.
(b) Provide 30 days’ notice to the public on a website maintained by the law enforcement agency of its intent to dispose of the firearm under this section. The notice shall include a description of the firearm and shall state the firearm’s serial number, if the serial number can be determined. The law enforcement agency shall allow the owner of the firearm to claim the firearm within that 30-day period if he or she is authorized to possess the firearm. The 30-day period required under this subdivision is in addition to the 30-day period required under subdivision (a).

(5) The law enforcement agency is immune from civil liability for disposing of a firearm in compliance with this section.

(6) As used in this section, “law enforcement agency” means any agency that employs peace officers.

History: Add. 1996, Act 496, Eff. Mar. 31, 1997; Am. 2010, Act 294, Imd. Eff. Dec. 16, 2010.

photo via Julian-G. Albert

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