Thread: Police confiscating your gun after a shooting

I carry a gun that I shoot well. I do NOT carry a gun to which I have emotional attachment (family heirlooms, etc.) for just the reasons stated in the preceding pages.

Originally Posted by Gomer

I was a little hesitant to add to this thread since things got a bit out of control but I decided I would since I don't think the original question was answered completely. In the Portland Metro area, the police operate pretty much the same so I think this info should give you a pretty good idea what happens. There are also laws that dictate what happens to property, be it a cheap trinket or a firearm... it is essentially the same.

In the case of a shooting the police will likely seize your firearm. In the case of a police shooting, they do exactly the same thing. It is a piece of evidence. If they don't take it at the time of the incident, as with any other piece of evidence, it may not be available later on. It also keeps any piece of evidence from being altered such as fingerprints, residue, etc., be it intentional or not.

However, once a case is finished, the property MUST be returned to the rightful owner. Police have no authority or right to keep anyone's property just because they want to. Unless the court decides the property should be disposed of otherwise (ie: it actually was an instrument of a crime) then it must be returned. However, if the rightful owner cant be reached then the property is disposed of... they aren't required to keep it forever and it is a reasonable amount of time. If you have moved it's a good idea to notify the police of your new contact information. A little tid-bit of info - most police agencies in the area do not sell the firearms but have firearms destroyed so there is no gain to them, in fact a cost involved. To add to this, the property/evidence folks want nothing more than to get rid of property that is filling their evidence storage areas that are already bursting at the seams.

If a district attorney (DA) decides it was a justified shooting the case will be considered finished. This can be based upon the DA's own decision or a Grand Jury. In either case, the property must be released to the owner regardless of what it is/was. The exception to this rule is if the owner is prohibited from possessing firearms by law however they can still own them, just cant possess them, and a third party who can legally possess firearms can pick them up. Not likely that the person wouldn't have been charged with the possession of the firearm if they weren't supposed to possess it to begin with in which case it would still be evidence for that crime. However I have seen it happen where somebody becomes prohibited from owning firearms after the original incident in which case the above "rule" applies.

If the case continues to trial then the firearm will be held until the case has concluded. If found guilty then the court will dictate what happens to the firearm. If a person is found innocent then the property must be returned as the court or police have no authority to keep it.

I cant speak for other states other than Oregon but the laws around the country for property rights are fairly similar. If the police failed to carry out specific laws for the disposal of property they may be civilly liable for your loss. However if the firearm was buried in mud, as one person mentioned, it is likely that they will not wipe it clean as this may very well destroy other evidence... an unfortunate downside.

I speak from over 20 years of experience in law enforcement and the general laws pertaining to evidence disposal really haven't changed much. As much as some forums may lead you to believe, most police are not gun grabbers by any means and agree that everyone has a right to firearms unless they have demonstrated they shouldn't due to their criminal lifestyles. I'm hoping that some armed citizen comes to my rescue some night when I'm getting my tail handed to me on the side of the road... there is always somebody bigger and badder than you (or me)!

Clear as mud?

I really hope some of the tinfoil hatters and anti-police folk here took the time to read this. This is a very good post (and also how it seems to work in Washington.)

What happens if the police take your gun for "evidence" and you are not arrested?
Do you get your gun back right away? (I think if they are not going to arrest you, then they should give the gun back)

What if the DA takes FOREVER to decide if he's going to charge you? Do you get your gun back in some "X" amount of time even if it takes him 3 years to decide?

What if the DA decides not to arrest you, you get your gun back, and then there is some change of mind and he decides he wants the gun back for evidence and wants to charge you? What if the gun has been destroyed or sold? What happens then?

Originally Posted by pchewn

What happens if the police take your gun for "evidence" and you are not arrested?
Do you get your gun back right away? (I think if they are not going to arrest you, then they should give the gun back)

Depends, if SOMEONE is getting charged then yes, they still need the evidence regardless if it is your property or not. Say you are involved in a shoot-out and you happen to be the hero that saves the day; they will still need to make sure that the bullet(s) fired from your gun came from your gun and went where you fired and so forth. Depending on the amount of rounds fired and other factors (i.e. subject's family demanding retrial, suing you, cross examining evidence with their own technician, etc.). Remember, it's not the police refusing to give you their property, it is the system not allowing evidence to leave their chain of custody.

What if the DA takes FOREVER to decide if he's going to charge you? Do you get your gun back in some "X" amount of time even if it takes him 3 years to decide?

Well, then you have your own ammunition against the system...

Amendment #5 of the US Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment #6 of the US Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

What if the DA decides not to arrest you, you get your gun back, and then there is some change of mind and he decides he wants the gun back for evidence and wants to charge you? What if the gun has been destroyed or sold? What happens then?

lol, there's a thing called "chain of evidence". Once that chain is broken or tainted, then they can no longer use it against you. If you feared being re-charged, then just sell your gun. They would never just "take it back". They would either use the evidence they collected against you to charge you or find new evidence. They wouldn't re-issue a warrant for previously released evidence unless something very unorthodox happened...this kind of thing can be used to show how disorganized the DA is.

Once the property is released back to you it is your property to use as you wish. If you destroyed it or sold it and refused to tell anyone there is nothing anyone can do about it.

If you want to carry a gun you should really know the legal process...