Sometimes getting the police department to return your property can be difficult. This is particularly true when it involves a firearm. Police officers love firearms so getting the police department to return a firearm to a suspected felon can be very challenging despite the admonition in the 14th Amendment to the United States Constitution which provides that no person shall be deprived of “… life, liberty, or property, without due process of law.”
A recent case involving the City of Hazelwood illustrates the difficulties and the potential liabilities for local government for failure to provide due process. In the Hazelwood case a police officer stopped a St. Louis County resident when he noticed that the vehicle lacked a front license plate as required by state law. The Officer ran a record check of the Driver, which revealed an outstanding warrant for his arrest in St. Louis County. The Officer asked the Driver if he had any weapons in the car. The Driver disclosed that he had a 9 mm Ruger pistol stored in the front console. The officer seized the pistol based on Missouri law that made it a felony for a fugitive to have a firearm. The Driver was charged with the unlawful use of a firearm; however the charges were later dismissed after it was learned that the firearm was legally purchased by the Driver, that it was properly registered under Missouri law in the Drivers name, and that the Driver had a valid permit to conceal and carry the firearm on his person in the State of Missouri.
The Driver sent the City police department numerous requests asking for the return of his pistol. Notwithstanding the dismissal of the original charge the Hazelwood police department refused to return the pistol after learning that there was another warrant for the Drivers arrest by the City of Edmundson. Even after Hazelwood learned that at the warrant by Edmundson for the Drivers arrest had been dropped it still refused to release the firearm relying on a City policy that it would not return a firearm that it lawfully seized unless ordered by a court. This of course prompted the Driver to file a civil rights lawsuit against the police chief and Hazelwood in federal court alleging that he had been deprived of his property without due process of law in violation of the 5th and 14th amendments and that the same conduct violated his right to keep and bear arms under the 2nd amendment.
The federal district court ruled for Hazelwood and the Driver appealed to the Eighth Circuit, which held that the United States Constitution requires a hearing once it is determined that the initial seizure of the ammunition and the weapon was not required as evidence in a court proceeding or the items were not contraband. The need for an immediate hearing occurred after it was determined that the initial charge filed in St. Louis County was dismissed and the fugitive warrant in Edmundson County was dropped. A post-deprivation remedy will suffice only when the challenged acts of state officials can be characterized as random and unauthorized. In the Hazelwood case, the City sought to hold the property pursuant to established procedures without providing an opportunity for a hearing, which violated the due process rights of the Driver. With respect to the 2nd amendment claim the Eighth Circuit affirmed the trial court’s decision on the grounds that the 2nd amendment protects generally the right to bear arms but does not protect the right to a particular firearm.
This case could be a game changer since my experience suggests that the policy followed by Hazelwood is pretty common. Public officials should consider checking with their police department and their city attorney to determine how the city has handled the return of property confiscated as part of an arrest. Police departments will be required to return property it seizes at the time of the arrest after the underlying charge is disposed of provided the property is not contraband or conduct an immediate hearing to establish if the city has the right to continue to hold the property. This is similar to the situation where the police tow and impound a vehicle.
Howard Wright @2011