police won't give gun back?

[straight-shooter]

I just spoke with a judge who is personal friends with me and the wife. He said to simply write a letter to the judge your son dealt with and have him make a phone call to the department that is holding his property. Beyond that he would have to contact a lawyer but the first solution should be enough I was told.

 

[fpdshooter]

Bill - Plain view doctrine really has nothing to do with the Laird Law. Let me give a brief example from earlier in the year I personally delt with and see if it helps illustrate it better.

We get a call from the wife of a fella. She is very afriad of him. In the past he has been committed to various psych units due to violent actions and thoughts, often suicidal. In her words during our contact "he is acting strange". Given her version of events, there is nothing I can do except offer to him a ride to the Psych hospital for a voluntary evaluation. She doesn't even want us to talk to him because she believes police intervention will make him violent. So basically there is nothing we can do at this point.

Fast foward about 45 minutes and she is on 911. The guy has flipped out. Tried to attack her with a knife. Took some swings at a friend of hers, and threw another knife at her, this one impaling itself in the wall (helluva a throw by the way!). He is ranitng about nonsence. When we get there he is still going off. He is making statements about "they" and "them" etc. He admits to trying to kill both his wife and her friend. Wife and friend don't want criminal charges, so he is involuntarily detained at a psych hospital for 72 hrs for his eval. Wife gives us all the guns to take, about 3 rusty rifles.

Since the wife gave us the guns to take (more like pleaded and carried them out to the cars) we did not need a search warrant to take them, they were voluntarily given to us. But in order to keep them, the reporting officer had to go to court for a Larid Law hearing. At the hearing were the officer, the mans wife, the man, and his doctor who had been treating him on and off for several years.

The judge ruled that not only was this incident enough for us to keep the guns, but given his long violent past he should have had them taken away a long time ago. All parties agreed with this, including the man who owned the guns. No evidence was presented by anyone that he should be allowed to keep them. They are still sitting in our property room.


Now then, to the best of my knowledge, no cop on a simple traffic stop could seize any weapons without their being a whole lot more going on. For example, like above, someone gets committed to a psych hospital because they are mentally unstable and a threat to themselves and a threat to others. It is a 3 prong test.

Does that clarify?

 

[Fargo]

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.

Actually, there probably hasn't been a "final disposition" of the case since it sounds like no charges have been filed and the statute of limitations in nowhere near run. "Final disposition" is a legal term of art and does not have the ordinary english meaning.

Joe

 

[DoubleTap Tactical]

Many Police Departments have all firearms sent for ballistics testing. Knowing how understaffed Government agencies can be you realize why it might take up to a year for the return of the firearm. The agency that originally took the weapon may not be in possession of it right now. Good luck finding it.

 

[JohnP82]

Wow that really sucks i am sorry to hear about your problem. hope it all turns out well good luck

 

[CarmelHP]

Many Police Departments have all firearms sent for ballistics testing. Knowing how understaffed Government agencies can be you realize why it might take up to a year for the return of the firearm. The agency that originally took the weapon may not be in possession of it right now. Good luck finding it.

I'd love to see the results of ballistic tests for this shotgun.

 

[Denny347]

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

http://www.in.gov/legislative/bills/2005/PDF/HE/HE1776.1.pdf

SECTION 4. IC 35-47-13 IS ADDED TO THE INDIANA CODE
AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2005]:
Chapter 13. Proceedings for the Seizure and Retention of a
Firearm
Sec. 1. As used in this chapter, "dangerous" means:
(1) a person presents an imminent risk of personal injury to
the person or to another person; or
(2) a person may present a risk of personal injury to the
person or to another person in the future and the person:
(A) has a mental illness (as defined in IC 12-7-2-130) that
may be controlled by medication, and the person has not
demonstrated a pattern of voluntarily and consistently
taking the person's medication while not under
supervision; or
(B) is the subject of documented evidence that would give
rise to a reasonable belief that the person has a propensity
for violent or emotionally unstable conduct.
The fact that a person has been released from a mental health
facility or has a mental illness that is currently controlled by
medication does not establish that the person is dangerous.
Sec. 2. A circuit or superior court may issue a warrant to search
for and seize a firearm in possession of a person who is dangerous
if:
(1) a law enforcement officer provides the court a sworn
affidavit:
(A) stating why the law enforcement officer believes the
person is dangerous and in possession of a firearm; and
(B) describing the law enforcement officer's interactions
and conversations with:
(i) the person who is alleged to be dangerous; or
(ii) another individual, if the law enforcement officer
believes that information obtained from this individual
is credible and reliable;
that have led the law enforcement officer to believe the
person is dangerous and in possession of a firearm;
(2) the affidavit specifically describes the location of the
firearm; and
(3) the circuit or superior court determines that probable
cause exists to believe that the person is:
(A) dangerous; and
(B) in possession of a firearm.
Sec. 3. (a) If a law enforcement officer seizes a firearm from a
person whom the law enforcement officer believes to be dangerous
without obtaining a warrant, the law enforcement officer shall
submit to the circuit or superior court having jurisdiction over the
person believed to be dangerous a written statement under oath or
affirmation describing the basis for the law enforcement officer's
belief that the person is dangerous.
(b) The court shall review the written statement described in
subsection (a). If the court finds that probable cause exists to
believe that the person is dangerous, the court shall order the law
enforcement agency having custody of the firearm to retain the
firearm. If the court finds that there is no probable cause to believe
that the person is dangerous, the court shall order the law
enforcement agency having custody of the firearm to return the
firearm to the person.
(c) This section does not authorize a law enforcement officer to
perform a warrantless search or seizure if a warrant would
otherwise be required.
Sec. 4. (a) Unless a court orders the return of the firearm under
section 3(b) of this chapter, the law enforcement agency that seized
the firearm shall retain custody of the firearm.
(b) If a court issued a warrant to seize a firearm under this
chapter, the law enforcement officer who served the warrant shall,
not later than forty-eight (48) hours after the warrant was served,
file a return with the court, stating:
(1) that the warrant was served;
(2) the time and date on which the warrant was served;
(3) the name and address of the person named in the warrant;
and
(4) the quantity and identity of any firearms seized by the law
enforcement officer.
Sec. 5. (a) Not later than fourteen (14) days after a return is filed
under section 4 of this chapter, or a written statement is filed under
section 3 of this chapter, the court shall conduct a hearing to
determine whether the seized firearm should be:
(1) returned to the person from whom the firearm was seized;
or
(2) retained by the law enforcement agency having custody of
the firearm.
(b) The court shall set the hearing date as soon as possible after
the return is filed under section 4 of this chapter. The court shall
inform the:
(1) prosecuting attorney; and
(2) person from whom the firearm was seized;
of the date, time, and location of the hearing. The court may
conduct the hearing at a facility or other suitable place not likely
to have a harmful effect upon the person's health or well-being.
Sec. 6. (a) At a hearing conducted under section 5 of this
chapter, the state has the burden of proving all material facts by
clear and convincing evidence.
(b) If the court determines that the state has proved by clear
and convincing evidence that the person is dangerous, the court
may order that the law enforcement agency having custody of the
seized firearm retain the firearm. In addition, if the person has
received a license to carry a handgun, the court shall suspend the
person's license to carry a handgun. If the court determines that
the state has failed to prove that the person is dangerous, the court
shall order the law enforcement agency having custody of the
firearm to return it to the person from whom it was seized.
(c) If a court orders a law enforcement agency to retain a
firearm, the law enforcement agency shall retain the firearm until
the court orders the firearm returned or otherwise disposed of.
Sec. 7. If the court determines that:
(1) a person is dangerous; and
(2) a firearm seized from the person is owned by another
person;
the court may order the law enforcement agency having custody of
the firearm to return the firearm to the owner.
Sec. 8. (a) At least one hundred eighty (180) days after the date
a court orders a law enforcement agency to retain an individual's
firearm under section 6 of this chapter, the individual may petition
the court for return of the firearm.
(b) Upon receipt of the petition described in subsection (a), the
court shall:
(1) enter an order setting a hearing date; and
(2) inform the prosecuting attorney of the date, time, and
location of the hearing.
(c) The prosecuting attorney represents the state at the hearing.
(d) In a hearing under this section, the individual:
(1) may be represented by an attorney; and
(2) must prove by a preponderance of the evidence that the
individual is not dangerous.
(e) If upon the completion of the hearing and consideration of
the record the court finds that the individual is not dangerous, the
court shall order the law enforcement agency having custody of the
firearm to return the firearm to the individual.
(f) If the court denies an individual's petition under this section,
the individual may not file a subsequent petition until at least one
hundred eighty (180) days after the date on which the court denied
the petition.
Sec. 9. If at least five (5) years have passed since the court
conducted the first hearing to retain a firearm under this chapter,
after giving notice to the parties and conducting a hearing, the
court may order the law enforcement agency having custody of the
firearm to destroy or otherwise permanently dispose of the firearm.

 

[JR50]

Jaboritzki,
To get the shotgun back:

1) Politely contact the Chief and explain the problem. If that doesn't work in a timely manner,
2) Contact your city councilman -- or local equivalent -- and have him/her contact the police department. Keep on bugging the local politician until you get the shotgun.

This will be the cheapest method and probably the fastest, although as someone else has said, writing a letter to the judge involved won't hurt.

 

[2cool9031]

I hoped he asked for some kind of a receipt for his weapon.

 

[crudolph00]

You should file a theft charge with the local PD.
Seriously.

At this point, it is stolen property.

If you do try and file a charge, you should also garner some media coverage. I'm sure your neighbors and fellow citizens would like to know how your son in law's property is being stolen by the government.

I think this is a hell of an idea!

 

[Ashkelon]

Here is how to get the shotgun back - I have represented people in this situation before and it is not complicated.

First - Verify that the version of events as you believe them to have taken place did in FACT happen the way you have been told. If you were not in Court or present for the traffic stop then you need to verify it. If I had a nickel for every person that told me that their criminal trouble was just a misunderstanding or a mistake by law enforcement I would be retired by now.

Second -Draft a letter for the Chief of Police or Sheriff that references the stop and place the report or incident number within the heading with the name and date of birth of your son in law. Ask for the return of the weapon and the letter should be signed by whoever is the rightful owner of the shotgun. (Better make sure you son in laws previous case wasn't felonious or someone is in a heap of trouble and he might have just gotten away with one)

Third - Address the letter to the same Judge that ordered his release. Carbon Copy.

Fourth - Be sure to attach a copy of the chronological case summary which is available from the Court. You will need this to verify the events anyway.

Upon delivery to both the Judge and the LEO wait a couple days -- call em up and go get the shotgun.

 

[SSGSAD]

Isn't there an amendment in the Constitution about this.

 

[Ashkelon]

The nine charges makes no sense either. They would have to work awfully hard to come up with 9 counts against a kid in this situation even if he was a convicted felon.

Verify the facts and let us know. What County did this happen in anyway? Just smells funny to me.

 

[fpdshooter]

Ashkelon - I have asked several specific questions of the OP about where, when, whom he has spoken to , etc...

I have yet to get an answer. Fishy? Maybe. But my BS meter is definitately pinging. The lack of any response to someone who posted this wanting advise is very telling.

Besides, I cannot fathom someone overstating facts, exagerating, or flat out lying on the errornet! (Not calling the OP a liar, but still waiting on some pointed answers to simple questions).

 

[Ashkelon]

FPD -- I agree. Most instances where I have been involved the former subject simply asks in a polite fashion and everybody moves along their way. People are generally very understanding of "just doing the job".

I fear the son in law may have riled up his father in law without giving full disclosure. I can't imagine though because my clients NEVER lie to me.