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.