The majority of the time, if firearms are observed during a lawful police investigation and in any way related to it, or used during the commission of a crime, or as a tool for self-defense, there will be a firearm confiscation by the police, at least during the pendency of the investigation and the firearms will be maintained during trial, if a criminal act is charged.
In many cases, for proper chain of custody, a legally confiscated firearm may be held after a criminal matter concludes for use as evidence in companion civil litigation, if any. Depending on the outcome of one or both of these cases, the firearm may be surrendered to the police for training purposes and/or destruction. However, upon motion of counsel and an order from the court following such resolution of these cases in favor or owner, the firearm may be returned to the lawful owner pursuant to the police department policy. Generally, all of this only occurs by a court order.
In drug or gun-running cases, there is a general confiscation of firearms as a standard operating procedure, as well as cash and illicit drugs. A lawful gun seizure will result in the firearms being forfeited as proceeds of the crime, if persons are charged and convicted. If the firearms recovered are stolen, they are required to be returned to the lawful owner.
In a new approach to addressing people who might be mentally impaired but not yet committed nor adjudicated mentally defective, and therefore prohibited possessors of firearms, some states, including Indiana, have adopted civil dangerous person firearms seizure statutes. Under these statutes, it allows a police officer to exercise discretion if he or she believes the police-citizen encounter is covered under statutory “dangerous person” criteria. The police officer may seize firearms upon the requisite observations.
The individual subject to dangerous person firearms seizure is afforded an immediate hearing and the burden is upon state to prove the person is such a danger that he or she should not possess a firearm. With a good defense, and sometimes an expert medical witness, the cases can be successfully handled and litigated, with results from dismissal to a finding that the person is not a dangerous person and return of the firearms.
If the state meets its civil burden, the firearms are maintained until person no longer has a disqualifying mental state or a maximum of five years. Alternatively, some courts will allow the firearms to be sold to a Federal Firearms License holder if they do not go into the actual or constructive possession of the dangerous person.
No lawfully possessed firearms may be confiscated during a qualifying disaster by any law enforcement officer whose agency receives funds from the federal government under the Stafford Act.
Ciyou & Dixon,P.C. attorneys routinely handle gun confiscations as a result of a criminal or civil matter and dangerous person firearms seizure cases.
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