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Old May 16, 2012, 12:55 PM   #1
TheNilvarg
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Police holding seized firearm for 180 days?

I live in Georgia.

Back in November, my personal carry revolver - my one and only firearm - was stolen and was used to commit a crime. The police seized it from the perpetrator when he was arrested, and they told me that it would be placed in evidence and that I'd be able to claim it when the trial is over.

The trial was on May 3rd, and a week later, I called the local police department and spoke to an extremely nice lady working in evidence lockup. She took down my information for a background check to make sure that I could own the gun I need to claim.

I'm a law-abiding citizen, so of course I passed the background check, but she called yesterday to tell me that the gun /ammo/holster that were seized would have to be held for 180 days after the background check. That basically means that in total, I will have been deprived of my right to bear arms and to defend myself for an entire year.

Is this Unconstitutional and legal? If not, is there anything I can do about it that won't cost me thousands of dollars in legal fees? At the very worst, I'm losing my Second Amendment rights, and at the very least, the gun is collecting rust in the evidence locker (I seriously doubt they'll keep it oiled, and I didn't have a chance to re-oil it before it was stolen).

Any advice is appreciated. Thanks.
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Old May 16, 2012, 01:16 PM   #2
Spats McGee
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Welcome to The Firing Line, TheNilvarg!

First, my usual caveat: I'm a lawyer, but I'm not your lawyer, and I'm not licensed in the Georgia state courts. What I'm about to type is not legal advice. If you want legal advice, go see a real Georgia lawyer.

With that said, you really do need to go see a Georgia lawyer to get the answers you want. I do have a question, though: Did the nice lady in evidence give you any reason for wanting to hold onto your pistol? Or is it just "the way they do things?" There may be some perfectly legitimate reason for keeping the pistol or there may not be. For example, the trial is over, but the police/DA/etc may need to hold onto the pistol in case there's an appeal. Or it may just be an unwritten policy, which is somewhat more problematic. The answer to that question may help resolve the constitutional question.

If you really want your pistol back, I'd suggest making those requests in writing, and keeping copies for your own file. If it turns out that the PD is doing something unconstitutional, your lawyer will be glad that you did.
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Old May 16, 2012, 02:45 PM   #3
BarryLee
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Sounds like a pretty raw deal to me. If you have not already done so contact GeorgiaCarry.org and discuss this with them. They should be able to answer your questions and possible even assist you in resolving this issue. Also, if you aren’t a member consider joining today.

http://www.georgiacarry.org/
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Old May 16, 2012, 02:47 PM   #4
Baba Louie
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Quote:
That basically means that in total, I will have been deprived of my right to bear arms and to defend myself for an entire year.
Deprived of a right? But only with that particular arm. You do have or can still legally purchase others... right?

Seek out legal advice as Spats writes. (which will cost)

I'll assume you did report your stolen handgun as well, so somewhere in some police dept records there exists that paper trail (probably not germaine).

Perhaps it is that the police or local prosecuters need said evidence for a bit for some other myriad reasons related to the criminal activity in which it was used, that has not come up as of yet? Might it have been used in other crimes or just the one wherein it (and bad guy) was seized? Dunno. Do you? Does it make a difference? (maybe)

Protocol?

I understand your anxiety, sympathize as well. A good reason for a backup, eh? And as Spats suggests, good reason for an attorney. (like guns, it could be said that it's better to have one (attorney) when you need one than to need one and not have one... ya know? )

Oh Yeah... and welcome to TFL by the way.
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Old May 16, 2012, 03:04 PM   #5
Conn. Trooper
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Here in CT, once we send that paperwork to court it is out of our hands. The courts (a superior court judge) decides when and if you get things back. Until the court orders the release, we are not giving it back. If the court ordered that, you are probably beat until the time is up.

We do have a form that can be submitted asking to expedite the return of property, and I have seen property returned very quickly. Maybe see if that is something that is available to you.
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Old May 16, 2012, 05:16 PM   #6
Aguila Blanca
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The only reason I can think of for retaining evidence after the completion of a trial is to ensure that the evidence will be available in the event of an appeal and a retrial. 180 days sounds excessive. What's the appeal period for a felony conviction in Georgia? Somehow, I would expect that it's something like 30 to 60 days but, unlike Spats McGee, I am not even "a" lawyer.
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Old May 16, 2012, 06:07 PM   #7
Stressfire
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Also not a lawyer, am a librarian though:

http://www.lexisnexis.com/hottopics/gacode/Default.asp

This should be current code, try Title 5 - not sure what most of it means, but I just find the info, I don't decode

Looks like 30 days to file an appeal, but definitely look for yourself and talk to an attorney in your state.

Good luck!
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Old May 16, 2012, 06:43 PM   #8
oneounceload
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Quote:
I'm a law-abiding citizen, so of course I passed the background check, but she called yesterday to tell me that the gun /ammo/holster that were seized would have to be held for 180 days after the background check. That basically means that in total, I will have been deprived of my right to bear arms and to defend myself for an entire year.

Is this Unconstitutional and legal? If not, is there anything I can do about it that won't cost me thousands of dollars in legal fees? At the very worst, I'm losing my Second Amendment rights, and at the very least, the gun is collecting rust in the evidence locker (I seriously doubt they'll keep it oiled, and I didn't have a chance to re-oil it before it was stolen).
You haven't bought another gun in the meantime? Why not?

You are confusing US Constitutional stuff with local State laws
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Old May 16, 2012, 06:47 PM   #9
Edward429451
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You should have an Attorney get a judge to sign an Order to Preserve Property. Then you have something to work with when they say they can't find your gun in 6 months. I beleive the courts automatically send a copy of the order to the evidence storage but I am not a lawyer or in Georiga.

All I can tell you is what I did. They "couldn't find my gun" and started telling me that they're destroyed every so often. I said oh yeah, I have my Order to Preserve signed by a judge and so you better produce my property and in good shape.

Funny thing, I had my stuff back the next day. Go see a lawyer. It can't cost that much to file one paper.

Last edited by Edward429451; May 16, 2012 at 11:31 PM.
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Old May 16, 2012, 10:00 PM   #10
johnwilliamson062
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They almost certainly have 6 months to appeal and they can't release the evidence before. If they appeal don't expect your gun back until that is over. Chain of evidence and all.

180 days doesn't sound so bad considering you didn't secure your firearm and it WAS used in a crime.

Not saying mine are secured every minute of everyday, but if one is stolen and used in a crime I won't be worried about how long it takes to get it back.
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Old May 17, 2012, 08:27 AM   #11
Spats McGee
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Quote:
Originally Posted by Aguila Blanca
The only reason I can think of for retaining evidence after the completion of a trial is to ensure that the evidence will be available in the event of an appeal and a retrial. 180 days sounds excessive. What's the appeal period for a felony conviction in Georgia? Somehow, I would expect that it's something like 30 to 60 days . . . .
This is exactly what occurred to me: appeal and retrial. In Arkansas and the federal system, the time for filing the notice of appeal on almost everything is 30 days. What happens after the notice is filed, until the conclusion of the second trial, could easily last 180 days, though.
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Old May 17, 2012, 08:30 AM   #12
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Quote:
That basically means that in total, I will have been deprived of my right to bear arms and to defend myself for an entire year.
No, you werent.
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Old May 17, 2012, 09:34 AM   #13
ncpatriot
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I had a shotgun returned to me by our local PD, back in early 80's. Don't know how it would be today. I moved out of a bad neighborhood. Neighbors had troubles with thugs following them around, etc. I lent them a single barrel for just in case.

A month later, 1 of the neighbors called & said the police had my gun. They had all come in from dinner night before & someone in the bushes shot one of them. One grabbed my shotgun & fired back. Police took shotgun, saying they should not have fired into the bushes.

I went to PD and inquired at front desk. Someone came out later with the gun. I showed ID and he gave it back, telling how neighbor should not have fired into bushes, may have hit someone else, etc. I acknowledged that, but asked if he might have done the same thing if fired upon. He hemmed & hawed. I suspect I knew the correct answer. I'm sure I would have a harder time today getting it back.

In spite of cost, I think you should get an attorney to pursue this. You are at the mercy of a lot of "gatekeepers". Also notify NRA, GOA and Georgia Carry. Post the story on Facebook. The more parties who know, the better. With no outside pressure your gun could easily be turned in for meltdown or returned in poor condition. A dishonest LEO or PD employee could sneak it out for himself if he likes it. Read up on the firearms seized by police in New Orleans during Katrina. Few of them were returned to owners and fewer still in good condition.
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