Police Firearm Seizure - Limitations
Conditions for seizure of firearm -- return of
seized firearm. (1) A peace officer may seize a legally possessed
firearm only:
(a) at an incident in which a firearm is
present and a peace officer on the scene has probable cause to believe
that the firearm was used to commit a crime. However, the peace officer
may take only that firearm and no other into temporary custody, for up
to 2 hours, to secure the safety of persons at the scene. If an arrest
is not made, the firearm must be returned to the person from whom it
was seized or to the rightful owner if that is determined to be another
person no later than the end of the 2-hour custody period unless a
court order is obtained to retain the firearm.
(b) if a person is arrested because of
probable cause to believe that the person has committed a crime and it
is alleged with probable cause that a firearm has been used to further
that crime. The firearm alleged to have been used may be seized as
evidence of commission of the crime. The firearm must be returned to
the person from whom it was seized or to the rightful owner if that is
determined to be a different person within 2 weeks of the seizure if no
criminal charge has been filed against the person from whom the firearm
was seized, unless a court order is obtained to retain the firearm.
(2) If a criminal charge against a person from
whom a firearm has been seized is dismissed or the person is found not
guilty, the firearm must be returned to the person or to the rightful
owner if that is determined to be a different person within 48 hours of
the dismissal or of a verdict of not guilty, if no other charges
directly relating to the firearm are pending.
(3) A person from whom a firearm is seized or
kept in a manner that is not consistent with this section may compel
the return of the firearm by demanding the return in writing, without
regard to the form of the writing, delivered to a representative of the
law enforcement agency that initially seized the firearm. The demand
must be honored within 24 hours. This process does not require an order
of any court to be effective. If the firearm is not returned, the
person may seek an immediate writ of mandamus from the district court
judge or justice of the peace to compel the return. The person may also
seek judicial sanctions and reasonable attorneys fees if they prevail
against a law enforcement agency that has failed to comply with the
initial demand for return. A person who may not legally possess any
firearm or the type of firearm seized is not authorized to demand the
return of a firearm under this subsection.
(4) A peace officer or law enforcement agency
in possession of a firearm under this section shall exercise due care
to prevent loss of or damage to the firearm and may be held liable for
any loss or damage.
(5) If a peace officer or law enforcement
agency seizes a firearm under this section, the person from whom the
firearm was seized must be given a receipt for the firearm, containing
enough specificity to identify the firearm, by the officer who seized
the firearm or by another officer from the seizing officer's agency
before the seizing officer leaves the scene.