When the police seize a gun in the course of an investigation, what becomes of it after any resulting court case concludes? A recent legislative enactment has changed the most common answer to that question – and may leave a significant number of weapons in limbo.
Prior law. Until recently, G.S. 15-11.1(b1) provided that once “the district attorney determines the firearm is no longer necessary or useful as evidence in a criminal trial,” the prosecutor should seek a court order disposing of the gun in one of the following ways:
- Returning it to the rightful owner, if the owner isn’t the defendant and didn’t know of the defendant’s intention to use the gun illegally.
- Returning it to the defendant, if he is the owner and lawfully may possess firearms, “but only if the defendant is not convicted of any criminal offense in connection with . . . the firearm.”
- Destruction by the sheriff.
- Turning it over to a law enforcement agency for its use or so that it may sell or trade the gun to a licensed dealer, with the proceeds, in the case of a sale, going to the public schools. This option is available only upon the written request of the agency head.
G.S. 14-269.1 contains a generally similar list of options, minus the option of returning the gun to the defendant, that applies when a defendant has been convicted of a weapons offense. My impression is that the most popular option by far has been destruction by the sheriff.
New law. This legislative session, the General Assembly enacted S.L. 2013-158, which changes the rules regarding the disposal of seized guns. (The new law became effective September 1, so some readers may have some thoughts about how it is starting to work in practice.)
In a nutshell, the new law provides that destruction by the sheriff is permitted only when the gun lacks a serial number or is unsafe due to age, wear, and the like. The idea behind the law may be that firearms are lawful items of monetary value, and that they should therefore either be returned to their owners or sold to generate revenue for the schools. (I’m speculating about the purpose, but Rep. Jacqueline Schaffer told WRAL that “[i]t seems fiscally responsible” to maintain rather than destroy seized guns.) The bill amends both G.S. 15-11.1 and G.S. 14-269.1.
Form. AOC-CR-218 is the AOC form designed for this procedure. It has been updated to reflect current law.
Practice problem? The new law may leave a significant number of guns in limbo, unable to be disposed of by any statutory means. For example, imagine that the police seize a gun when they arrest a defendant who sold drugs to an undercover officer, and that the defendant is subsequently convicted of sale of cocaine. What can be done with the gun? The defendant is, or was, the rightful owner, so there’s no other rightful owner to receive the gun. The defendant’s a felon, so the gun can’t be returned to him. It’s in working order and has a serial number, so under the new law, it can’t be destroyed. If no law enforcement agency wants the gun, for its own use or for its trade value, or wants to deal with selling it to benefit the schools, and so no agency head submits a “written request” for the gun, it isn’t clear what can be done with the weapon. I would be interested in comments about what is happening in practice with this type of weapon.
Unclaimed guns. The bill also changes the law concerning the disposal of unclaimed guns. The major changes are (1) that an unclaimed gun may not be destroyed unless it is missing a serial number or is unsafe due to age or wear (instead, it must be sold to a dealer, retained for training, or given to a museum), and (2) that the head of the law enforcement agency in possession of the gun may determine how the gun should be disposed of without seeking court approval.
It’s a dumb law.
First, and perhaps most importantly, is that many of these seized guns are connected with significant emotional events. Accidents. Robberies. Murders. Suicide. Can you imagine being the spouse of a person who has shot themselves in a suicide attempt, then knowing that gun is up for sale to the public? Or if your loved one was killed in some violent crime and then that gun is returned to the public realm for further use?
I guarantee you that if a knife is used in a violent crime, it doesn’t wind up at a gun show or in the neighborhood thrift store when the case is over. If a baseball bat is used to bludgeon Mr. Smith’s spouse during a domestic assault, he doesn’t get that back, nor is it donated to the local Little League for “training”. Should the legislature in their wisdom pass laws protecting knives and baseball bats as well?
Second, it prevents law enforcement agencies from conducting “buy back” programs. There are plenty of arguments for and against the effectiveness of buy back programs and no reliable statistical information (that I’ve read) to back up either position. What can’t be argued is that guns are purchased and destroyed and that’s “x number” of fewer handguns that law enforcement has to face the next day.
The law takes important discretion away from judges and police agencies in a matter that no law can ever comprehensively cover because it involves issues “beyond the law.”
I suppose the answer is to find a federally licensed firearms dealer who will agree to buy your guns for a buck or some nominal cost and then destroy them himself. But the simpler solution is to go back to the way things were being done before Sept. 1.
I disagree and think this is a great new law. With ever shrinking budgets and more limited availability of some types of firearms, these seized guns can be put in their place. These guns used for training show officers how to handle and operate guns they may come across on the street as well.
As far as “attached to an emotional event,” wht about a car used in a arak hit ad run that’s returned or seized and sold. I have seen nice collector knives used in crimes later sold at police austion along with many other items. It’s a gun, a tool. Because someone used your drew driver to pry something open, will you throw it away and no longer use it on screws?
The way I read this, the new law only applies to unclaimed weapons and not weapons seized as evidence. GS 14-269.1 deals with weapons seized as evidence and this new session law does not significantly change it other tha by ordering such weapon turned over to the sheriff of the county in which the trial is held or his duly authorized agent to be destroyed. destroyed if the firearm does not have a legible, unique identification number or is unsafe for use because of wear, damage, age, or modification. The sheriff shall maintain a record of the destruction thereof.”
Another issue with this new session law is 15.11.2 (f) states that the disbursement of Proceeds of Sale. – If the law enforcement agency sells the firearm, pursuant to subdivision (2) of subsection (e) of this section, then the proceeds of the sale shall be retained by the law enforcement agency and used for law enforcement purposes.
The new AOC form AOC CR-218 states If the firearm is sold, the agency shall remit the proceeds of sale to the county finance officer, pursuant to G.S. 115C-452, to be used to maintain free public schools.
Thank goodness our brave lawmakers have finally stood up for the helpless in our midst, those precious, lovely guns that would otherwise have been destroyed by the freedom-haters!
The only downside is that the proceeds will go to the public schools to indoctrinate more of our youth in the evils of socialism.
/snark off/
This is ALEC’s “Save the Guns” bill. I’m a bit surprised that there’s not some sop to the bail bondsmen in it.