Asset forfeiture can be a very common part of the arrest and investigation process. Under the law, law enforcement officers generally have the authority to seize most types of property such as;
- Houses
- Boats
- Cars
- Money
- Drugs, and
- Firearms
The process of retrieving back confiscated property can oftentimes be long and drawn out. Generally, the duration of confiscation and the difficulty in reclaiming back property will depend on the initial grounds of confiscation. Reclaiming firearms from police custody without proper legal knowledge and guidance could result in the firearms sitting in a police evidence locker for 2-5 years.
Reasons Why A Firearm May Be Seized
Asset forfeiture typically occurs when the property in question was suspected of being used in committing a crime or was acquired through an illegal activity. Figuring out the reason for why the property was seized is the first step to reclaiming your property. There are several reasons for why your firearm was seized:
Forfeiture:
Forfeiture of properties often happens because authorities might suspect that the property was used or obtained in a crime. Generally property owners will be given the change to attend a court hearing and provide a reason to why their property should not be forfeited. However, if the allegation concerning the property is valid, authorities may choose to permanently hold or sell that property.
Contraband:
Contraband is illegal in its own right. Therefore, contraband properties will be seized because the item is illegal to obtain or sell in the first place. For example, unregistered firearms, stolen firearms, and automatic weapons or machine guns. It is important to note that contraband may extend to firearm accessories as well, such as silencers. The seizure of contraband firearms can be reclaimed if the property owner asserts a valid showing in court. Otherwise, authorities will either hold onto the firearm until the case is resolved or destroy the property afterwards.
Evidence:
Properties are not required to be contraband or subject to forfeiture to be taken away. Sometimes properties can also be seized because it may be a key evidence to a case. Individuals must consult with an attorney to check if the property can be retrieved during the time the case is pending. However, in most cases, evidence hold can go on until the case is resolved, or sometimes may extend to the process of appeal as well.
Firearm restraining order (GVRO):
In California, gun control laws grant law enforcement officers, family members, co-workers, and teachers the eligibility to petition authorities of issuing a firearm restraining order against a person that may possess danger to themselves or other people. Once an issue has been made, gun restraining laws orders or GRVO prohibits a person from owning, possessing, or purchasing firearms or ammunition for a duration of 1-5 years. Gun restraining orders can be removed once the restraining order expires. Otherwise, individuals must prove that the restraining order was made by false allegations, and they do not pose danger to themselves or other people.
How are properties legally confiscated?
Under federal law, civil forfeiture is an enforcement tool that allows authorities to seize property that they suspect might be involved in a criminal activity or was obtained illegally. However, when improperly exercised, civil asset forfeiture can take advantage of innocent individuals. In many cases, criminals are not the only target of getting their property taken away. Several reported cases have shown that innocent individuals with no evidence of wrongdoing may have their property seized as well. Therefore, authorities must follow certain specific procedures to ensure that the forfeiture is reasonable and legal. The government may legally forfeit property under two main types of cases:
- The property owner was convicted of a crime related to the property, and
- The government must comply to certain procedural rules
For instance, seizure of any property during an arrest must be presented with a receipt of forfeiture to indicate which items the police have taken in their custody. Seizure of property during search warrants must be presented with a search warrant return, similarly to a receipt of forfeiture. Additionally, if a law enforcement officer confiscates a firearm due to safety reasons, the law requires the officer to make an application to the court. The application must be made within 30 days, for the court to issue a disposition to the firearm. However, if the officer fails to make an application within 30 days, the firearm must be returned to the individual.
When Can I Reclaim My Firearms From Police Custody?
To understand when a person can reclaim their firearms from police custody, one needs to factor in the reason why they were taken in the first place. Contraband firearms may be the hardest to reclaim from police custody since it is very difficult to find justification grounds to prove the invalidity of the seizure. The following circumstances are some examples of how you can reclaim your firearms from police custody:
Safekeeping
Firearms seized for safekeeping will be returned to the owner once there has been a release from custody. Additionally, individuals can make future arrangements to reclaim the firearm from the property office
Evidence
Firearms will likely be returned once the criminal case is resolved. The period of when an individual can reclaim the firearm can take from weeks to months depending on how long it takes to conclude the case. An early release of the evidence is possible when it can be ruled out that the firearm is no longer a relevant part of the case. In this step, attorneys may help individuals arrange a return with a prosecutor.
No criminal charges
Firearms may sometimes be seized without the filing of any criminal charges. Authorities may deny the return of firearms under pending investigation grounds. In this situation, individuals are encouraged to consult with an attorney to discuss legal grounds they might have against an invalid confiscation.
To increase the chances of reclaiming the property, individuals should keep always keep a record of the seizure such as receipt of forfeiture and search of warrant return, the date of the seizure, name, and contact of the officer who seized the property, and a list of items that were seized as verification.
Contact Pride Legal
If you or a loved one has had their firearms taken into police custody, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.
