police won't give gun back?

[LEaSH]

So maybe a year from now - if it doesn't get lost.

 

[fpdshooter]

He will get it back. I don't know what dept we are talking about as it has not been mentioned.

Unfortunately he is dealing with a beauracy. Things do take time. It should not take a year, but it may take a few weeks or a couple of months.

If it is a larger dept. then it will take longer because they have more things to deal with.

Before everyone jumps all over the lawyer bandwagon, we need some more facts to accurately judge the situation. I would like to know what deptartment is involved. Second, how about a case number? When exactly did this happen? Who in the property room did you talk to?

Some basic facts need to be put forth by the OP before everyone starts running around like Chicken Little. I don't doubt the validity of the OP, but c'mon guys it is the errornet after all. Not everything we read is accuratley represented.

 

[evansvillethompsongunner]

Absolutely. They HAVE to give it back. They just don't have to do it in a timely manner.

No, under Indiana law, it has to be as SOON as reasonably possible.

State statute:

IC 35-47-3-2, excerpt:
Application of section to firearms not required to be registered in National Firearms Registration and Transfer Record; return of firearms to rightful owners; disposal procedure
Sec. 2. (a) This section applies only to firearms which are not required to be registered in the National Firearms Registration and Transfer Record.
(b) Firearms shall be returned to the rightful owner at once following final disposition of the cause if a return has not already occurred under the terms of IC 35-33-5. If the rightful ownership is not known the law enforcement agency holding the firearm shall make a reasonable attempt to ascertain the rightful ownership and cause the return of the firearm.

 

[Bigum1969]

No, under Indiana law, it has to be as SOON as reasonably possible.

State statute:

IC 35-47-3-2, excerpt:
Application of section to firearms not required to be registered in National Firearms Registration and Transfer Record; return of firearms to rightful owners; disposal procedure
Sec. 2. (a) This section applies only to firearms which are not required to be registered in the National Firearms Registration and Transfer Record.
(b) Firearms shall be returned to the rightful owner at once following final disposition of the cause if a return has not already occurred under the terms of IC 35-33-5. If the rightful ownership is not known the law enforcement agency holding the firearm shall make a reasonable attempt to ascertain the rightful ownership and cause the return of the firearm.

Good find.

 

[femurphy77]

No, under Indiana law, it has to be as SOON as reasonably possible.

State statute:

IC 35-47-3-2, excerpt:
Application of section to firearms not required to be registered in National Firearms Registration and Transfer Record; return of firearms to rightful owners; disposal procedure
Sec. 2. (a) This section applies only to firearms which are not required to be registered in the National Firearms Registration and Transfer Record.
(b) Firearms shall be returned to the rightful owner at once following final disposition of the cause if a return has not already occurred under the terms of IC 35-33-5. If the rightful ownership is not known the law enforcement agency holding the firearm shall make a reasonable attempt to ascertain the rightful ownership and cause the return of the firearm.

Of course the huge sandbag in this option is "shall make a reasonable attempt to ascertain the rightful ownership and cause the return of the firearm"

Playing devils advocate here, can he PROVE it's his? These guys can and will be PRI##S about it if they want to be and be completely within the law. I've known a lot of good cops out there and a few real tools, unfortunately the tools are the ones you hear the most about. Good luck in your venture, keep us updated.

 

[bigus_D]

What about false arrest? Sure the officer may have been provided bad data over the computer, but shouldn't this still be false arrest? Not to mention lost wages...

If this happened to me, you can bet your arse I'd at least talk to an attorney. Many of them work on a contingency basis (get paid out of the winnings)... if you have a strong case, a lawyer on contingency will work it...

 

[evansvillethompsongunner]

Of course the huge sandbag in this option is "shall make a reasonable attempt to ascertain the rightful ownership and cause the return of the firearm"

Playing devils advocate here, can he PROVE it's his? These guys can and will be PRI##S about it if they want to be and be completely within the law. I've known a lot of good cops out there and a few real tools, unfortunately the tools are the ones you hear the most about. Good luck in your venture, keep us updated.

Well, I left out the rest of the section for brevity's sake, but the rest of the chapter/section can be found at:

Indiana Code 35-47-3

Basically, from what I gather, if one is convicted of misuse of firearms, the State will not even attempt to return them, as that person is then no longer a 'rightful' (I guess they mean 'legal') owner of that firearm, and if that happens, apparently it goes to either the sheriff's department in which the offense occurred, or to the city or town police, if the city/town police were the LEA which confiscated the firearm in the first place and the city/town has a population between 2,500 and 250,000 people (weird requirement on the population...) and THAT agency must dispose of it within four months by either: public auction; sale to a licensed dealer; release to ISP or other forensic laboratory for forensic analysis and 'research' (???), said laboratory which must then, after it is done with researching the firearm, return it to the LEA which confiscated it in the first place, to dispose of it via the other methods listed (???!!??), else it must be destroyed, method of which is not explicitly stated as are all the other methods of 'disposal' explicitly limited and well-defined (sales to licensed dealers are to be done by auction with public notice, apparently, with ten days' notice).

So, yeah, kinda weird in a way, but almost logical.

NFA items are, apparently, treated much the same as non-NFA items save that NFA items which are confiscated may NOT be sold to a dealer via auction as non-NFA items, which can be dealt with via auction... however, if the firearms are sent to a forensic lab or state agency, the laboratory then registers the firearm on the NFA registry (???). If none of these suffice, apparently the police may then "may choose to transfer as public property in the ordinary course of lawful commerce and exchange." - IC 35-47-3-3(g) (?!?!?!) Does this mean that the police can then sell the firearm without NFA restrictions, with it thusly being titled as "public property in the ordinary course of lawful commerce and exchange"?

The NFA part of this is really where things confuse me, and I just basically parroted back what I read with only how I interpreted it as commentary... but some of it is very confusing, hence my added question marks... I'd really like to hear from someone who knows more about this, especially LEOs or forensic analysts at said 'laboratories'...

I generally like our laws here in Indiana, as they are for the most part not too complicated nor too asinine, but what's listed in statute in this case just seems weird to me... surely I'm not reading all of this correctly??

 

[Hornett]

If he is a member of the NRA they have lawyers on staff just for this sort of occasion.
They are also really good at getting media attention.

 

[fpdshooter]

What about false arrest? Sure the officer may have been provided bad data over the computer, but shouldn't this still be false arrest? Not to mention lost wages...

If this happened to me, you can bet your arse I'd at least talk to an attorney. Many of them work on a contingency basis (get paid out of the winnings)... if you have a strong case, a lawyer on contingency will work it...

You would have no case for false arrest. The officer had good faith based on information he had recieved that the suspect was still on probation. If a reasonable person put in the same situation with the same information would make the same decisions, then the officer acted reasonably.

Now if the officer knew that he was not on probation and made the arrest anyway, then you would have a case for false arrest.

Given the facts presented to us by the OP, no false arrest took place.

By the way...I'm still waiting to hear the answers to my questions.

What department?
When exactly was the shotgun siezed?
Who did you speak to in the property room?
What is the case number?

 

[bigus_D]

You would have no case for false arrest. The officer had good faith based on information he had recieved that the suspect was still on probation. If a reasonable person put in the same situation with the same information would make the same decisions, then the officer acted reasonably.

Sure, the officer was acting on the information available... but shouldn't somebody be responsible for the false information provided to the officer? Seems to me like the somebody should be liable for this gross oversight.

 

[fpdshooter]

It was a simple clerical error, made by a clerk or secretary in the prosecutor's office. Are you really going to go after someone who makes $30K a year for a simple typing mistake?

Not much of a payout there, especially after you let your lawyer take his 30% cut.

 

[ar15junkie]

Are you really going to go after someone who makes $30K a year for a simple typing mistake?

Why is it reasonable for the police to act on this information but not the son?

I would say, oh well mistakes happen but this guy is out a days pay and a shotgun, not to mention having to explain to his employer why he missed a day of work. All for a crime hes already paid the price for.

 

[fpdshooter]

I'm not sure I understand your question.

If you are referring to the false arrest post, police are granted a small amount of immunity from prosecution or civil lawsuits if they are acting in a good faith belief that what tye are doing is lawful and reasonable.

In the instance given, the officer recieved information that the subject (the OP's son) was still on probation and therefore could not be in possission of a firearm. The officer acted on his good faith believe that the information he had recieved from either his dispatch or an IDACS/NCIC hit was valid. He acted upon what he reasonably believed to be accurate information.

Using the good faith exception, the officer is immune from "false arrest". Agan, if the officer knew that he was not on probation and still arrested him, then said officer has opened himself up to criminal and civil charges under the Fourth Amend.

If that does not address your concerns, please elaborate as I'm not sure what you are asking.

 

[dross]

A couple of things - while I don't know the law on this, police officers and clerks and everyone who works in government must have leeway to make errors. False arrest isn't the same thing as a mistake that leads to an arrest that shouldn't have happened

Next point - good luck trying to find a lawyer on contingency to take this case. Where are the damages? A lost day's pay, and a lost shotgun. There's no money to collect here. I'm sure you could find a lawyer to take the case, but likely his retainer is going to be several times what the shotgun is worth.

With that said, there's a disconnect here between those who work in government and those of us whom the government is supposed to serve. If you work for government, your explanations of policy and the way things are fall on deaf ears to we civilians. Most of us work for private sector employers, a world where if you make a big mistake, the consequences are big, and there isn't a stack of rules and regulations protecting you from the consequences.

What we'd like to hear is someone who works for the government we pay for to say, "Wow, obviously this is a unusual situation where a guy has unfairly lost his property. Let's streamline this process, go the extra mile, and get the guy his property back. We'll walk it through the system and make it happen."

Please don't tell me that it "just doesn't work that way." I know it doesn't, and that's the problem.

 

[Fargo]

First a little background. My 22 year old son-in-law was in a fight a couple of years ago. He was put on probation and finished it. He has not been in any other trouble.

He and my step daughter were pulled over a few weeks back. When the officer came to the car to ask for his license he seen a shotgun in the back seat. He took my son-in-law out of the car and arrested him because the police mistakenly thought he was still on probation and was in violation of the probation because of the shotgun in his back seat. He had taken the shotgun to show me at my house. It was not loaded and there was no shells for the gun in the car. He spent the night in jail and went to court the next morning. The judge said there was no reason for him to be there or to have even been arrested since he was not on probation. The 9 original charges were dropped and he was released immediately. He has tried to get his shotgun back and keeps getting told that it can take up to 1 year before it can be returned to him.

Does anyone have any advice for him? To me, this is bull. He did nothing wrong. I don't know why he was pulled over in the first place. I am sure there was a reason but the gun in the car took any and all attention away from that so even he don't know why he was pulled over in he first place. So he did nothing wrong, there was a mistake in the police computer system so he got to spend the night in jail, miss work, get his private property taken away, which I totally understand because of what the officer thought. Had he been on probation the officer would have been right and because of the mistake in the computer system, the officer had no way of knowing that my son-in-law was within his rights. But now that everything has been cleared up, he can't get his private property back for a year? Does anyone know what steps he should take to get his shotgun back asap?

Thanks for any advice.

What were the 9 charges originally sent in on him? That sounds like quite a bit more than 1 probation violation. Were they filed and then dismissed, or did the prosecutor's office decline to file them at all?

If they were filed and then dismissed, showing the dismissal to the PD should expedite the guns return. If they are still unwilling, then you probably need to file a petition with the court that he was charged in asking for the release of property. Since you are not represented by an attorney, a polite letter CC'd to the prosecutor's office might do the trick.

If he was never formally charged by the prosecutor, then its a bit trickier. Depending on the charges, the statute of limitations will be 2+ years and charges can technically be filed up through the running of the statute. If this is the case, you may want to contact the prosecutor's office and ask for a warning letter or something you can show to the PD to demonstrate that the charges will not be filed. You may also want to ask the prosecutors office to contact the PD about getting the property released. They may be willing to help or they may tell you to pound sand but it can't hurt to ask.

Either way, make sure any requests come from your son or his attorney otherwise they will certainly be ignored. Not legal advice, just my opinion.

Best,

Joe

 

[bigus_D]

...police officers and clerks and everyone who works in government must have leeway to make errors. False arrest isn't the same thing as a mistake that leads to an arrest that shouldn't have happened

I've got to disagree with this statement 100%. MUST they? Really? Sure... perhaps they are provided this leeway, but that doesn't make it right. That said, I'm not saying the beat cop did anything wrong, but the system surely screwed this guy pretty hard. If it happened to him, it can happen to any one of us. If this can happen due to a 'clerical' error, who is to say my social security # won't "accidently" pop up on an arrest warrant (because I pissed off some clerk or somesuch).

Next point - good luck trying to find a lawyer on contingency to take this case. Where are the damages? A lost day's pay, and a lost shotgun. There's no money to collect here. I'm sure you could find a lawyer to take the case, but likely his retainer is going to be several times what the shotgun is worth.

fair enough... in fact, I agree with the majority of the remainder of the post.

 

[Bill of Rights]

Hey folks,

This thread has gotten a little close to the line... Some have crossed that line and I've deleted a couple of posts because of it. Generalized statements to the effect of "all cops do this" or "you can't trust any LEO" are unacceptable here. If you have a specific complaint against a specific department, BE specific. The OP did not crack on a department, but he also didn't generalize. He asked for ideas of how his son-in-law could proceed.

FPDshooter: Thanks for your feedback from the LEO perspective. Based on your first post, I am curious: You said that as a result of the Laird Law, LEOs may seize firearms from those who are a mentally unstable and have been proven in court to be a danger to themselves or others, and that a warrant is needed. Is the "plain sight exception" a factor here in a vehicle, or would that be under a different law? Also, who is determining mental stability or instability? I have no quarrel if it's done by an ethics-bound medical mental health professional. Alternatively, if it's done by "any cop on the side of the road" and based solely on reportedly observed behavior... I can't imagine any of us not seeing the fail in that. (For me, I want to see those behaviors documented on camera, with sound.)

Once again, the majority of this thread has been within bounds, but it's gotten close a couple of places. Let's keep it civil and continue the free flow of information. Who knows; the good advice you get from a cop on here today might keep your tail end out of a wringer tomorrow.

Thanks, all.

Blessings,
Bill

 

[dross]

I've got to disagree with this statement 100%. MUST they? Really? Sure... perhaps they are provided this leeway, but that doesn't make it right. That said, I'm not saying the beat cop did anything wrong, but the system surely screwed this guy pretty hard. If it happened to him, it can happen to any one of us. If this can happen due to a 'clerical' error, who is to say my social security # won't "accidently" pop up on an arrest warrant (because I pissed off some clerk or somesuch).

fair enough... in fact, I agree with the majority of the remainder of the post.

Here's why I say "must":

Mistakes in good faith are a part of life. If you design a system that must operate error-free, you have designed an unworkable system.

Let's say you have the greatest clerk in the world. Our imaginary clerk has never made a single error in twenty years of employment. Then one day, she makes an error, someone's arrest warrant isn't cleared, and somebody gets arrested. What are you going to do? Prosecute her criminally? Have her liable for civil damages? Impossible situation.

Every system is designed to operate with a certain percentage of acceptable error. Now, certain types of work deserve special care, and carry special liablility, and without knowing for sure, I could believe that police departments need to be tightened up in that area, but making a person face criminal or civil penalties for a normal day to day mistake would create a host of problems worse than the occasional screwup.

 

[bigus_D]

Here's why I say "must":

Mistakes in good faith are a part of life. If you design a system that must operate error-free, you have designed an unworkable system.

Let's say you have the greatest clerk in the world. Our imaginary clerk has never made a single error in twenty years of employment. Then one day, she makes an error, someone's arrest warrant isn't cleared, and somebody gets arrested. What are you going to do? Prosecute her criminally? Have her liable for civil damages? Impossible situation.

Every system is designed to operate with a certain percentage of acceptable error. Now, certain types of work deserve special care, and carry special liablility, and without knowing for sure, I could believe that police departments need to be tightened up in that area, but making a person face criminal or civil penalties for a normal day to day mistake would create a host of problems worse than the occasional screwup.

Sure... if the clerk and the cop are both acting in good faith. Neither should be exposed for a simple error... too many errors and they should lose their jobs. I agree they shouldn't be directly liable barring gross negligence. The same is true for private sector employees (for the most part). However, I still think the government should be liable for such an errant arrest... at least for lost wages .

We've probably thread jacked plenty here... sorry to the OP. Sorry, also, to hear about them keeping the gun. "Timely" doesn't always mean timely I guess.

 

[samot]

Ive had one taken before as well, under different cicumstances, but taken nun the less.. At first the CLEO would snidly say" so basically what you want is your firearm back correct?" . This went on for quite some time. My advice, the boy needs to politely ask for his firearm back @ least once a weak, in person. Eventually they will get so tired of you asking for it, you will finally get it back. remember to be polite & smile. Never let em see ya sweat. this at least worked for me. It is a pain in the ***, but you dont have alot of choices really. Just stay on it. Good Luck