Police might seize a firearm when making an arrest or conducting an investigation. Sometimes, the firearm will be returned; but police and certain prosecutors are reluctant to return a firearm.
Where police seize a firearm as evidence of a crime, police may keep the firearm for several years as the criminal case winds its way through the trial and appellate courts. This is true even if the firearm did not belong to the defendant charged in the criminal case. Also, police may seize a firearm that is not evidence in a crime–for instance, when the firearm is found in a seized vehicle or seized during a home search and later deemed not evidence in a case.
Whether the firearm is evidence or not, police will eventually have to decide what to do with a seized firearm. Michigan has two statutes concerning disposition of a police-seized firearm. The relevant statutes are MCL 750.239 and MCL 750.239a. Essentially, police must follow a process for disposition of a firearm that involves the following steps:
- Identify the owner of a lost or stolen firearm via Law Enforcement Information Network (L.E.I.N.) database;
- Notify the owner of the firearm that police intend to forfeit the firearm;
- If the owner is not known, publish an intention to forfeit the firearm on a website;
- Wait 30 days for the owner to claim the firearm; and
- If no owner claims the firearm within 30 days, dispose of the firearm by
- keeping the firearm for police use;
- selling or trading the firearm and using the proceeds; or
- destroying the firearm.
Michigan statutes formerly provided for a lawsuit in circuit court for return of a firearm; however, in 2010, Michigan’s legislature eliminated the law and passed legislation providing police agencies with blanket immunity for disposition of a seized firearm. So, if police refuse to return a firearm to its owner and instead keep, sell, or destroy the firearm; the owner doesn’t have much recourse because police are immune from liability concerning disposition of the firearm.
In summary, seeking return of a firearm from police is an uphill battle with little chance of success. Perhaps the best that can be hoped for is encountering an honest police department or prosecutor’s office who is not anti-gun. Maybe return of a firearm can be negotiated, but it’s not likely unless the gun owner can establish that he or she is a crime victim or has lost the firearm and properly reported it.
Posted on April 4, 2022,
Jeffrey M. Schroder, Esq.
Senior Assistant Public Defender
Marquette County Public Defender’s Office
100 Coles Dr., Ste. 1
Marquette, MI 49855
Office: (906) 226-4370