Introduction
When a firearm is seized by law enforcement in California, retrieving it can be a complex process governed by specific state laws. California has established clear procedures for the return of firearms, but challenges often arise due to local agency policies or misunderstandings of the law. This article provides a step-by-step guide to the law enforcement gun return process, defines key legal provisions, and explains how The Davis Law Firm, led by attorney Jason Davis, can assist in navigating this process to ensure your rights are protected.
Key Definitions and Legal Framework
Law Enforcement Gun Release Process
The Law Enforcement Gun Release (LEGR) process allows a firearm owner to reclaim a firearm seized by law enforcement, provided they are not prohibited from possessing firearms. California Penal Code section 33850 et seq. outlines the procedure, requiring the owner to submit a Law Enforcement Gun Release Form (BOF 101) to the California Department of Justice (DOJ). If approved, the DOJ issues a letter with a “gold seal” confirming the owner’s eligibility to possess firearms, which is then used to retrieve the firearm from the seizing agency.
Common Issues with Local Agency Policies
Some law enforcement agencies impose additional requirements, such as proof of ownership, registration in the Automated Firearms System (AFS), or a court order, which may conflict with state law. Specifically:
- Proof of Ownership: California Evidence Code section 637 states, “Things which a person possesses are presumed to be owned by them.” If firearms were seized from you, they are presumed to be yours, and a property receipt issued at seizure is sufficient evidence. Evidence Code section 638 further supports this, stating, “A person who exercises acts of ownership over property is presumed to be the owner of it.” Requesting return of the firearm is an act of ownership, reinforcing the presumption.
- Court Order: A court order is only required for firearms seized pursuant to a search warrant. Local policies demanding a court order in other cases are illegal and preempted by state law.
In extreme cases, agencies may violate Penal Code section 33885, which mandates: “In a proceeding for the return of a firearm seized and not returned pursuant to this chapter, where the defendant or cross defendant is a law enforcement officer, the court shall award reasonable attorney fees to the prevailing party.” This provision incentivizes compliance and supports owners in legal disputes.
Step-by-Step Process for Law Enforcement Firearm Return
- Verify Eligibility:
- Ensure you are not prohibited from possessing firearms under state or federal law (e.g., no felony convictions, restraining orders, or mental health prohibitions). The California DOJ’s Firearm Prohibiting Categories provides a comprehensive list.
- Confirm the firearm was seized by a law enforcement agency and is eligible for return (e.g., not an assault weapon or evidence in an ongoing case).
- Complete and Submit the Law Enforcement Gun Release Form:
- Obtain the Law Enforcement Gun Release Form (BOF 101) from the California DOJ website (Form BOF 101).
- Provide required information, including:
- Personal details (name, address, ID).
- Details of the seized firearm(s) (make, model, serial number, if known).
- Information about the seizing agency and date of seizure.
- Submit the form to the DOJ Bureau of Firearms with the appropriate fee (currently $20 per application, payable by check or money order) and supporting documents, such as:
- A copy of your California driver’s license or ID card.
- Proof of lawful presence if “FEDERAL LIMITS APPLY” (e.g., U.S. passport, certified birth certificate).
- Certified documents for name changes (e.g., marriage certificate).
- Military personnel must include permanent duty station orders indicating a California station.
- Await DOJ Approval:
- The DOJ Bureau of Firearms reviews the application to confirm you are not prohibited from possessing firearms. This process typically takes 30–60 days.
- If approved, the DOJ issues a letter with a “gold seal” stating you are eligible to possess firearms. This letter is critical for retrieving your firearm.
- Schedule Firearm Retrieval:
- Contact the law enforcement agency that seized the firearm and provide the DOJ’s gold seal letter.
- Make an appointment to pick up the firearm. Bring the property receipt issued at seizure (if provided) and any other requested identification.
- If the agency refuses to return the firearm (e.g., citing lack of AFS registration, requiring a court order, or demanding proof of ownership), refer to the legal provisions below and consider legal assistance.
- Address Unlawful Agency Requirements:
- Court Order: A court order is only necessary for firearms seized via a search warrant. For other seizures (e.g., domestic violence, temporary holds), a court order requirement is illegal. Reference Penal Code section 33855.
- Proof of Ownership: Cite Evidence Code section 637 (“Things which a person possesses are presumed to be owned by them”) and section 638 (“A person who exercises acts of ownership over property is presumed to be the owner of it”). The property receipt or your possession at the time of seizure establishes presumed ownership.
- If the agency did not issue a property receipt, they violated Penal Code section 33860, which requires a receipt for seized firearms. This violation further supports your claim.
- Pursue Legal Action if Necessary:
- If the agency persists in refusing to return the firearm, litigation may be required. Penal Code section 33885 allows the prevailing party to recover reasonable attorney fees in such cases, incentivizing agencies to comply.
- Engage an attorney to file a petition for the return of the firearm, protect your rights, and counter potential intimidation or harassment by law enforcement.
Legal and Safety Considerations
The LEGR process is designed to protect firearm owners’ rights, but local agency policies can create unlawful barriers. Completing the process through an attorney is highly recommended to:
- Avoid potential criminal prosecution (e.g., if the agency questions the firearm’s legality).
- Protect privacy rights during interactions with law enforcement.
- Counter intimidation tactics or harassment, which some owners experience when seeking firearm return.
Additionally, ensure the firearm is not an assault weapon (as defined in Penal Code sections 30510–30530), as these may be subject to destruction or other restrictions. For National Firearms Act (NFA) Title II firearms (e.g., suppressors, machine guns), federal compliance is also required, necessitating expert legal guidance.
How The Davis Law Firm Can Help
The law enforcement firearm return process in California can be fraught with challenges, from navigating DOJ requirements to overcoming unlawful agency policies. The Davis Law Firm, led by experienced attorney Jason Davis, specializes in firearms law and offers expert assistance to ensure your firearm is returned efficiently and legally.
- Expert Guidance: Jason Davis provides personalized advice on completing the LEGR form, addressing agency refusals, and ensuring compliance with state and federal laws.
- Advocacy Against Unlawful Policies: The firm can challenge agencies that demand court orders, proof of ownership, or AFS registration by citing relevant statutes (e.g., Evidence Code sections 637, 638; Penal Code section 33885).
- Litigation Support: If litigation is necessary, The Davis Law Firm can file petitions to enforce your rights and recover attorney fees under Penal Code section 33885.
- Protection from Intimidation: The firm shields clients from potential law enforcement harassment, ensuring your privacy and rights are upheld throughout the process.
Don’t let unlawful policies prevent you from reclaiming your firearm. Contact The Davis Law Firm today for expert legal assistance. Visit www.thedavislawfirm.com or call (123) 456-7890 to schedule a consultation with Jason Davis and secure the return of your property with confidence.
Conclusion
The law enforcement firearm return process in California is straightforward under state law, requiring only the submission of the LEGR form and DOJ approval. However, local agency policies often complicate the process with unlawful requirements. By following the outlined steps and leveraging the expertise of The Davis Law Firm and attorney Jason Davis, you can navigate these challenges, enforce your rights, and reclaim your firearm efficiently and legally.
Key Resources
- Law Enforcement Gun Release Form (BOF 101)
- California Penal Code Sections 33850–33885
- California Evidence Code Sections 637, 638
