Published by The Law Offices of Bruce Colodny
By Bruce Colodny, The California Gun Attorney
Revised & Copyright © 2017
What happens when your firearms are taken into custody by a law enforcement agency? Can you retrieve them, and if so, how? If they are not returned, what becomes of them? These are questions that I am frequently asked. This article provides an overview of current California Law governing the seizure of firearms by law enforcement, the standards used to determine whether or not firearms will be returned, general advice on the return of seized firearms, and the lawful disposition of confiscated firearms.
First, why are firearms seized by law enforcement? The most common reason is for use as evidence in a criminal case. Firearms may also be taken into custody for "safekeeping". For example, if a shooter returning alone from a range is injured in a traffic accident and is taken to the hospital by ambulance, the law enforcement officer investigating the accident will normally cause the contents of the vehicle to be inventoried. Any firearms found will normally be held by the property custodian of the law enforcement agency responsible for the investigation.
If your firearm is seized for use as evidence in a criminal case in which you are charged with unlawfully using it and you are convicted, subject to limited exceptions, it is deemed a nuisance and not returned. If your firearm is used as evidence in a criminal prosecution against someone other than yourself, and you had no prior knowledge that it would be misused, California law provides that the firearm shall be restored to the lawful owner, as soon as its use as evidence has been served, upon your identification of the weapon and proof of ownership, and upon you obtaining from the California Department of Justice (“CA DOJ”) a written determination that you are eligible to possess firearms and presenting this to the law enforcement agency that has custody of your firearm.
California law requires a gun owner seeking the return of a firearm from law enforcement custody to apply to the CA DOJ for a determination that they are eligible to possess firearms. This is accomplished by submitting a Law Enforcement Gun Release Application (“LEGR”). This form can be downloaded from the website of the CA DOR. The form is completed by providing identifying information for the applicant and for all firearms sought to be released as well as the name, address and report number of law enforcement that has custody of the firearms. If you submit an LEGR, you should keep a copy and send the form by Certified Mail, Return Receipt Requested, so that if you do not receive a response within approximately 60 days, you will have proof that it was received by the CA DOJ. Remember to include a check or money order for the required processing fees. If your LEGR application is approved, you must retrieve your firearms within 30 days of the date on your LEGR approval letter or you will have to submit another LEGR application.
When submitting an LEGR application, if any of the firearms you are seeking to have released from law enforcement custody, are not listed in your name in the Automated Firearms System (“AFS”) database maintained by the CA DOJ some law enforcement agencies may refuse to return them. Handguns (and all cartridge firearms purchased on or after January 1, 2014) that you purchased from a licensed California firearms dealer should be listed in your name in the AFS. Firearms may already be listed in your name in the AFS database for other reasons, for example, an assault weapon that you timely registered, or firearms reported to the CA DOJ when you brought them with you upon moving into California as a new resident (required for handguns as of 1/1/1998 and all firearms as of 1/1/2014).
To have a firearm listed in your name in the AFS database usually requires the submission to the CA DOJ of a Firearm Ownership Report (“FOR”) form or a Report of Operation of Law or Intra-Familial Firearm Transaction (“OP LAW”) form. Because these forms must be signed under penalty of perjury, and because the manner in which you obtained a firearm may have been unlawful, you should consult a qualified attorney before taking any action (see below).
California law provides that once a law enforcement agency has given notice that a seized firearm is available for release, if it is not released within 180 days of that notice, then the law enforcement agency is authorized to destroy or otherwise dispose of that firearm.
What happens to firearms seized from you if you suffer a criminal conviction which results in the loss of your firearm rights? Your attorney may be able to obtain a court order for the release of those seized firearms which you lawfully possessed and did not criminally misuse. This type of court order usually directs the release of such firearms to a licensed firearms dealer to be sold for you, either on consignment or at auction. This will allow you to recover most of their economic value. The dealer’s fee for liquidating your firearms will usually range from 15% to 40% of the selling price. As an alternative, your attorney may be able to obtain a court order directing release of the seized firearms to an eligible relative or friend.
You may need an attorney if your firearms are seized by law enforcement. There are many reasons why. If you have any concern that you unlawfully acquired or possessed a firearm that was seized, you should immediately consult a qualified attorney before taking any action on your own. If you were arrested or investigated by law enforcement but you have not been charged, statements made to law enforcement while requesting the return of your firearms may later be used against you in court. Even if your case was initially rejected for prosecution, your subsequent efforts to obtain the return of your firearms or statements that you made without legal representation, may result in a re-evaluation of your case resulting in the filing of criminal charges against you.
What are your options when the law enforcement agency refuses to return your firearms and the value of seized firearms is less than the anticipated attorney’s fees? If you have the financial ability and the principle is important to you or the firearms have sentimental value, you may decide to proceed even though the attorney’s fees may exceed the value of the seized firearms. Depending upon the circumstances, California law may provide for an award of attorney’s fees. A cost-benefit analysis should be considered before commencing court action to obtain the release of seized firearms.
The California gun owner should also be aware of, and attempt to, avoid common situations which often result in the seizure of firearms. If a family dispute escalates to the point that there is a law enforcement response, the police are likely to consider this situation to be a domestic violence incident and seize the gun owner’s entire collection. Carefully handle any disputes with neighbors or their guests over common complaints such as loud music, parties or illegal parking. These situations frequently result in calls to the police or requests for restraining orders which may also result in the seizure of firearms or having restraining orders issued, requiring the gun owner to surrender all their firearms to law enforcement or to sell them to, or store them with, a licensed firearms dealer (see our article, Divorce, Restraining Orders and the California Gun Owner for more information). Be discreet with firearms when you are loading or unloading your vehicle and when you are cleaning a firearm, to prevent observation by a neighbor or passerby who may overreact and call the police.
Finally, what happens to seized firearms that are not returned to the owner or released to a licensed dealer? Seized firearms may be destroyed, sold at auction to holders of Federal Firearms Licenses or retained for "...use in carrying out the official duties of the agency..." or delivered to the military.
As noted above, attempts to obtain the release of seized firearms without legal representation may have serious consequences and may result in criminal prosecution.