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Thread: Confiscated firearms.

  1. #1
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    I'm wondering if anyone can shed light on something I find a little disturbing.
    A local hunting & fishing shop owner & I were talking the other day regarding his attempts to get some guns which the police had confiscated from another man out of police custody & returned to the owner. I asked why he even needed to be involved since the guy was never arrested & was not forbidden from buying guns, owning guns and never even had his permit revoked.
    He attempted suicide and later voluntarily admitted himself for treatment. The guns were seized after his suicide attempt.

    From what the shop owner said the police would not release the guns to the owner due to liability concerns. But if the shop owner got them from the police he could sell them for the guy or possibly return them to him.

    I'm not looking for wether or not a person who attempted suicide should have guns or not. I'm looking for if its legal for the police to keep privately owned firearms from an eligible owner because of their fear of liability. It would seem that if they can refuse to return them for fear of liability then they can almost universally refuse to return them since ANYONE can do something wrong with a firearm if they choose to do so.

    I this case the DPS has already been contacted & said that the man could buy any gun he wants thats legal to own in CT. Given that fact are the local police breaking the law?
    Is it always necessary to go thru an FFL to get confiscated firearms returned?

  2. #2
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    The short answer is that the police are likely acting within their power to seize the owner's firearms -- but it depends on the actual facts of the case and whether the proper procedure has been followed. Bear with me as I step through the legal analysis.

    The question to ask here is whether 4th and 14th amendments restrict the government from seizing these firearms and if so, whether the government actor(s) followed the correct procedure in effecting such seizure.

    The 4th amendment states:

    "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

    This restriction on power is applied to the states through the due process clause of the 14th amendment which states:

    "[N]or shall any State deprive any person of life, liberty, or property, without due process of law[.]"

    In essence, these constitutional provisions check state and federal governments from seizing any property without proper procedure and substance in executing such seizure -- referred to as "procedural due process" and "substantive due process" respectively.

    Balance this with the Connecticut statute that the police are/will likely claim grants them the power exercised -- Conn. Gen. Stat. § 29-38cstates in relevant part:

    "Upon complaint on oath by any state's attorney or assistant state's attorney or by any two police officers, to any judge of the Superior Court, that such state's attorney or police officers have probable cause to believe that (1) a person poses a risk of imminent personal injury to himself or herself or to other individuals, (2) such person possesses one or more firearms, and (3) such firearm or firearms are within or upon any place, thing or person, such judge may issue a warrant commanding a proper officer to enter into or upon such place or thing, search the same or the person and take into such officer's custody any and all firearms."

    I am not opining on the (federal) constitutionality of this statute but notice that it provides a procedure for seizing firearms by requiring that a warrant be issued by a judge. This is the procedural due process. Moreover, the statute essentially requires that the authority act under "probable cause" (which is required when making any arrest or seizure under the 4th/14th amendments) that the owner is a risk and goes on to state, in portions not quoted above, that such warrant shall only issue with the support of specific affidavits sworn by the complaintant(s). This is the substantive due process.

    In conclusion, if the officers followed the procedure outlined in this statute and a judge ordered a warrant for seizure after considering evidence, then the seizure was likely proper. Is so, then there is no way for the (former) owner to go around seizure by executing some type of step transaction through an FFL (as opposed to purchasing the firearms from a vendor).

    If we are talking about pistols here, then there is no way to regain them or the right to possess pistols without going through a legal appeal or reapply for a license. Since the State can seize and cancel a license to carry a pistol (which is legal - i.e. constitutional), it can effectively revoke the owner's ability to possess these firearms because it is illegal to do so without a license.


    P.S. - For the legal beagles out there, we know that the 4th amendment is fully incorporated to the states through the 14th amendment from cases like Ker v. California, 374 U.S. 23 (1963), Aguilar v. Texas, 378 U.S. 108 (1964), and their progeny. On a personal note, I believe that selective incorporation is a bastardization of the clear meaning and intent of the privileges and immunities clause of the 14th amendment. We are likely stuck with it, however, as the court's transcript in the McDonald case indicates their unwillingness to revive it as Slaughterhouse is now too long accepted to reverse.

  3. #3
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    Go a bit further, and name the town and law enforcement agency that has possession of the firearms.

    I would think that a simple civil remedy to this problem exists somewhere.

    I'm not an attorney but would definately be talking to one about this situation.

    Look up the word and read about "REPLIVEN"

    A writ of Repliven couldbe in order



    Leverdude wrote:
    I'm wondering if anyone can shed light on something I find a little disturbing.
    A local hunting & fishing shop owner & I were talking the other day regarding his attempts to get some guns which the police had confiscated from another man out of police custody & returned to the owner. I asked why he even needed to be involved since the guy was never arrested & was not forbidden from buying guns, owning guns and never even had his permit revoked.
    He attempted suicide and later voluntarily admitted himself for treatment. The guns were seized after his suicide attempt.

    From what the shop owner said the police would not release the guns to the owner due to liability concerns. But if the shop owner got them from the police he could sell them for the guy or possibly return them to him.

    I'm not looking for wether or not a person who attempted suicide should have guns or not. I'm looking for if its legal for the police to keep privately owned firearms from an eligible owner because of their fear of liability. It would seem that if they can refuse to return them for fear of liability then they can almost universally refuse to return them since ANYONE can do something wrong with a firearm if they choose to do so.

    I this case the DPS has already been contacted & said that the man could buy any gun he wants thats legal to own in CT. Given that fact are the local police breaking the law?
    Is it always necessary to go thru an FFL to get confiscated firearms returned?

  4. #4
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    Replevin will likely not work. Conn. Gen. Stat. § 52-515provides:

    "The action of replevin may be maintained to recover any goods or chattels in which the plaintiff has a general or special property interest with a right to immediate possession and which are wrongfully detained from him in any manner, together with the damages for such wrongful detention."

    (emphasis added). Unless there is something missing from the statement of facts, the firearms are not "wrongfully detained." Moreover, there is no right to immediate possession if the property was seized properly (i.e. - satisfied due process requirements). I did find a single case from an Oklahoma appeals court ordering that seized firearms be returned to the owner under a writ of replevin but only after the seizing authority had no other proper necessity to hold them. In this case, they are holding them because of a clear, present, and articulable danger.

    That is not to say that you should not try to get property back. Always try to maintain your property. Follow the procedure published at:

    http://www.jud.ct.gov/CivilProc/replevin.htm


  5. #5
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    JohnGalt wrote:
    The short answer is that the police are likely acting within their power to seize the owner's firearms -- but it depends on the actual facts of the case and whether the proper procedure has been followed. Bear with me as I step through the legal analysis.

    The question to ask here is whether 4th and 14th amendments restrict the government from seizing these firearms and if so, whether the government actor(s) followed the correct procedure in effecting such seizure.

    The 4th amendment states:

    "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

    This restriction on power is applied to the states through the due process clause of the 14th amendment which states:

    "[N]or shall any State deprive any person of life, liberty, or property, without due process of law[.]"

    In essence, these constitutional provisions check state and federal governments from seizing any property without proper procedure and substance in executing such seizure -- referred to as "procedural due process" and "substantive due process" respectively.

    Balance this with the Connecticut statute that the police are/will likely claim grants them the power exercised -- Conn. Gen. Stat. § 29-38cstates in relevant part:

    "Upon complaint on oath by any state's attorney or assistant state's attorney or by any two police officers, to any judge of the Superior Court, that such state's attorney or police officers have probable cause to believe that (1) a person poses a risk of imminent personal injury to himself or herself or to other individuals, (2) such person possesses one or more firearms, and (3) such firearm or firearms are within or upon any place, thing or person, such judge may issue a warrant commanding a proper officer to enter into or upon such place or thing, search the same or the person and take into such officer's custody any and all firearms."

    I am not opining on the (federal) constitutionality of this statute but notice that it provides a procedure for seizing firearms by requiring that a warrant be issued by a judge. This is the procedural due process. Moreover, the statute essentially requires that the authority act under "probable cause" (which is required when making any arrest or seizure under the 4th/14th amendments) that the owner is a risk and goes on to state, in portions not quoted above, that such warrant shall only issue with the support of specific affidavits sworn by the complaintant(s). This is the substantive due process.

    In conclusion, if the officers followed the procedure outlined in this statute and a judge ordered a warrant for seizure after considering evidence, then the seizure was likely proper. Is so, then there is no way for the (former) owner to go around seizure by executing some type of step transaction through an FFL (as opposed to purchasing the firearms from a vendor).

    If we are talking about pistols here, then there is no way to regain them or the right to possess pistols without going through a legal appeal or reapply for a license. Since the State can seize and cancel a license to carry a pistol (which is legal - i.e. constitutional), it can effectively revoke the owner's ability to possess these firearms because it is illegal to do so without a license.


    P.S. - For the legal beagles out there, we know that the 4th amendment is fully incorporated to the states through the 14th amendment from cases like Ker v. California, 374 U.S. 23 (1963), Aguilar v. Texas, 378 U.S. 108 (1964), and their progeny. On a personal note, I believe that selective incorporation is a bastardization of the clear meaning and intent of the privileges and immunities clause of the 14th amendment. We are likely stuck with it, however, as the court's transcript in the McDonald case indicates their unwillingness to revive it as Slaughterhouse is now too long accepted to reverse.
    I dont question that the police were right to confiscate the guns at the time. I question their refusal to give them back since the man is not prohibited from owning, posessing or carrying them. The shop owner called the DPS to ask if he could sell the man a handgun and was told yes he could because the person was not charged or convicted of any crimes & his permit was not revoked. Thats the part that has me confused.
    If he can buy a gun then I'd think the police would have no justifiable reason not to return him his property, even if they are afraid of what he might do.

    I'm not a lawyer & am going only on what I'v been told which may or may not be 100% correct. At any rate the shop owner now has posession of the guns but is afraid to give them back, he feels he can sell them for the owner but is forbidden from giving them back. Yet he can sell them to him.

  6. #6
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    Edward Peruta wrote:
    Go a bit further, and name the town and law enforcement agency that has possession of the firearms.

    I would think that a simple civil remedy to this problem exists somewhere.

    I'm not an attorney but would definately be talking to one about this situation.

    Look up the word and read about "REPLIVEN"

    A writ of Repliven couldbe in order

    Its in Norwalk & involves the Norwalk police Ed.
    As I said in my response to JohnGalt the guns are in the shop now but the shop owner is afraid (so he says) to give them back. Personally in his shoes I wouldn't want to be involved and am unsure if his incentive is that he wants to help restore the guys ownership of them or if he just wants to collect a commision to sell them.
    They are supposedly waiting on the gun owners lawyer to tell them what they should do.

    I just find it tough to swallow that a persons property (guns) could be taken & not restored if he isn't forbidden from possessing them.

    For my own personal knowledge I'd like to understand a persons rights regarding private property confiscation & restoration when no crime was committed. I have no dog in this fight so to speak other than liking to understand & make sense of the law.
    Its no secret that there is alot of misinformation spread by the police & gun dealers both, intentional or not, the result is muddy waters where they should be clear.

  7. #7
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    I did not understand that the police had released the firearms to the dealer. Are you saying that the police confiscated the guns and then gave them to the dealer? This doesn't make any sense. The police cannot take private property, give it to another person, and then order that receiving person not to dispose of the property in a certain way (disclaimer - without some action of law and/or court order and even then it is questionable).

    If this is what happened, then the dealer has the property of another and must return it. The owner still has a valid pistol license and can legally own the firearms so there should be no legal impediment to possession. If you can clarify the facts and I may be able to craft an answer that is on point.

  8. #8
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    Leverdude wrote:
    For my own personal knowledge I'd like to understand a persons rights regarding private property confiscation & restoration when no crime was committed. I have no dog in this fight so to speak other than liking to understand & make sense of the law.
    Its no secret that there is alot of misinformation spread by the police & gun dealers both, intentional or not, the result is muddy waters where they should be clear.
    Like I said above, the Connecticut replevin statute gives you the right to seek an order from a court to recover your property if, among other facts hold true: (1) the owner has a right to immediate possession; and (2) the property has been wrongfully detained. This applies regardless of whether the possessor is a private party (think of a repo man taking a car) or a government party - that is, the store owner or the police.

    If the police took the firearms and gave them to the store owner, however, there is a clear violation of this person's property rights. Without boring you with my lengthy analysis of the 5th amendment takings clause, I will tell you that the government cannot simply transfer private property to another individual. That is 100% against the federal constitution.

    What you really care about then is getting it back. You have a few options:

    1 - Make a demand to the store owner. Self help is the best and cheapest remedy.

    2 - If he refuses, you can seek replevin against him.

    3 - Seek a declaratory judgment from a court that you have a legal ownership interest in those guns. See http://www.jud.ct.gov/Publications/P...1.pdf#page=233(section 17-55).

    4 - Seek a writ of mandamus: "An action of mandamus may be brought in an individual right by any person who claims entitlement to that remedy to enforce a private duty owed to that person, or by any state’s attorney in a capacity as such to enforce a public duty." See http://www.jud.ct.gov/civilproc/mandamus.htm.

    If you go forward with option 2, 3, or 4, I suggest getting a lawyer to help since they all have cost associated with them anyway.



  9. #9
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    Deleted because you answered me. Thank you.

    I would only add that the rightful owner & the shop owner are working together & he is fine with the dealer holding the guns for now.

  10. #10
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    I wonder if the police went into his Kitchen and tool box and took all the pointed objects. Or if they took all the glass out of the house that might be used to cut skin. As from what the police say they might be liable, well if this guys wants to kill himself he does not need a firearm.

    (Attempted Suicide in not a domestic violence act)
    If it was the person would have been arrested for Domestic Violence.
    Then the Firearms could be taken until the case was settled in court
    and then returned to the owner if he won the case.

    He has not been Committed involuntary by a Probate Court or any other Court or lawful authority
    and by asking for help in-itself is not a disqualification factor
    in owning a Firearm.
    .
    (He may be found unsuitable to carry for the time but still has the right to his property, on or in his Property) He needs to go to the police and demand hes Firearms (Property) back, also the gun shop owner can be charged with
    possession of private property that does not belong to him.

    As far as I can see this, the Police are complicit in stealing this mans property no matter what the reason they say. (in this case not a legal confiscation) and as such this property is stolen and any one in possession of this property is breaking the law even the Police. The Police cannot make up laws as they go along. JMO

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