When Must Cops Return Seized Property?

By Robyn Hagan Cain on May 22, 2012 | Last updated on March 21, 2019

In March, we told you about a Fifth Circuit Court of Appeals decision in which the court ruled that New Orleans police did not violate a man's Second Amendment rights by refusing to return his lawfully-seized gun after the district attorney declined to pursue charges against him. At the time, Judge Rhesa Hawkins Barksdale wrote for the 2-1 panel that "the right protected by the Second Amendment is not a property-like right to a specific firearm, but rather a right to keep and bear arms for self-defense."

Now, the Fifth Circuit Court of Appeals has backtracked, not on its Second Amendment stance, but on whether the cops must return seized property under state law.

One month before his July 2008 arrest, New Orleans police seized Errol Houston’s Glock 22 .40-caliber pistol. Approximately a month later, the district attorney entered nolle prosequi (abandonment of prosecution) on the charges against Houston, but the city didn’t return the pistol. Almost a year after his arrest, the city still had the gun. Houston sued, claiming violations of the right to keep and bear arms and of due process, and seeking the return of his firearm.

The district court dismissed Houston’s right-to-keep-and-bear-arms and due process claims against the city under Rule 12(c). The district court ruled that retention of the firearm was “reasonable” and Houston “[did] not have a Second Amendment right to the particular firearm seized.” The lower court further noted that law enforcement has a compelling interest in seizing weapons pursuant to a lawful arrest and as evidence of crimes” and “narrowly tailors such seizures” accordingly. The Fifth Circuit Court of Appeals agreed.

Now, the Fifth Circuit has changed tack, finding that there is an adequate state-law basis to resolve the dispute.

Only two statutes arguably confer on New Orleans officials the ability to retain lawfully seized property: La. Rev. Stat. 40:1798 and La. Rev. Stat. 15:41. One, La. Rev. Stat. 40:1798 requires law enforcement agencies to return a seized firearm if the gun is not contraband, the agency can identify the gun owner, and the owner didn’t commit a crime with the gun. The other, La. Rev. Stat. 15:41 outlines the circumstances under which seized property can and should be returned.

The Fifth Circuit ruled that both statutes mandate the return of a firearm or other property to its lawful owner when it is not contraband and is no longer needed by law enforcement. Viewing the allegations in the light most favorable to Houston, the court held that the government’s refusal to return Houston’s pistol following the nolle prosequi, (if not earlier), arguably violated state-law provisions.

While the court’s decision is certainly welcome news for Errol Houston, it doesn’t guarantee that he will get his gun back: the city could still prove to the district court that it is permitted to keep the gun under either of the relevant state laws governing seized property.

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