Litigation Blog

Legal advice, news, and insights

What does the court focus on in child custody cases? Part I

LEGAL STANDARDS FOR CHANGE IN CUSTODY OR PARENTING TIME PART I – WHAT IS A CHANGE IN CIRCUMSTANCE OR PROPER CAUSE?

Whenever a parent files for divorce, a change in custody, or even a change in parenting time, the court must analyze numerous factors prior to making a decision about what it best for your child. (more…)

Can I Modify My Firearm?

Michigan law does not prohibit the modification of a firearm. Common firearm modifications include replacing or modifying: (more…)

What are Pistol-Free Zones?

In response to the terrorist attacks in the United States and in Europe, many Michiganders are obtaining concealed pistol licenses. However, it’s important to understand that Michigan law limits where a concealed pistol or taser can be carried. (more…)

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:

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.

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 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.

Where Is Marijuana Legal?

Before you rely on the information provided here, remember:

  • Under federal law, marijuana use and possession is illegal in the entire United States of America.  Under federal law, marijuana is a schedule-one drug, meaning that it is as serious as LSD and heroin.  There is a movement to federally eliminate scheduling of marijuana, but that hasn’t happened yet.  While the federal authorities have refrained from prosecuting marijuana, I have seen cases where the Department of Justice has prosecuted and imprisoned persons here in Michigan for operating marijuana dispensaries and for trafficking in marijuana.  
  • I am a Michigan lawyer, and I’m licensed to practice law in Michigan.  Before you travel to another jurisdiction for the purpose of using or possessing marijuana, make sure to check with an authority about the legality of marijuana in that jurisdiction—many of the decriminalized jurisdictions have limits on the purpose for using and on the quantity of possessing marijuana.  
  • In any jurisdiction, do not operate a motor vehicle, all-terrain vehicle, snowmobile, boat, or airplane while intoxicated by marijuana.
  • In any jurisdiction, do not carry concealed, possess, or discharge a firearm while intoxicated by marijuana.
  • Before you use or possess marijuana in Michigan, review the Michigan Medical Marijuana Act, which includes age limits, possession limits, and cultivation limits.  If you stray from the legal limits, you risk conviction for a misdemeanor or even a felony.  The Michigan Medical Marijuana Act can be found here.

Recreational Use:

Marijuana is legal for recreational use in:

  • Alaska
  • California
  • Colorado
  • Illinois
  • Maine
  • Massachusetts
  • Michigan
  • Nevada
  • Oregon
  • Vermont
  • Washington
  • District of Columbia

Medical Use:

Marijuana is legal for use as treatment for a medical condition in:

  • Arizona
  • Arkansas
  • Connecticut
  • Delaware
  • Florida
  • Georgia
  • Hawaii
  • Louisiana
  • Maryland
  • Minnesota
  • Missouri
  • Montana
  • New Hampshire
  • New Jersey
  • New Mexico
  • New York
  • North Dakota
  • Ohio
  • Oklahoma
  • Pennsylvania
  • Rhode Island
  • Utah
  • West Virginia
  • Puerto Rico
  • United States Virgin Islands

Decriminalized:

Marijuana use has been decriminalized in some way, perhaps reduced to a civil infraction in:

  • Connecticut
  • Delaware
  • Hawaii
  • Maryland
  • Minnesota
  • Mississippi
  • Missouri 
  • Nebraska
  • New Hampshire
  • New York
  • North Carolina 
  • North Dakota
  • Ohio
  • Rhode Island
  • Virginia
  • U.S. Virgin Islands

Criminal: Marijuana use is either a misdemeanor or a felony in:

  • Idaho
  • Nebraska
  • South Dakota
  • American Samoa
Map of cannabis laws in the US

Map showing legal status of cannabis in the United States: 

Map includes laws which have not yet gone into effect. 

Image citation: Legality of Cannabis by U.S. Jurisdiction, Wikipedia, Web, September 21, 2020. https://en.wikipedia.org/wiki/Legality_of_cannabis_by_U.S._jurisdiction#By_state 

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