California law has set up procedures on the return of firearms by law enforcement. All a firearm owner is required to do under the law is complete the Law Enforcement Gun Release Form, and submit it to the California Department of Justice in accordance with the instructions on the form and appropriate payment. If the California Department of Justice – Bureau of Firearms finds that you are not prohibited from possessing firearms, they will issue a letter with a “gold seal” to you stating that you are not prohibited from possessing firearms. Upon receipt, you must make an appointment with the respective law enforcement agency to pick-up your firearm.
However, on many occasions, the law enforcement agency refuses to return the firearms because they are not registered in the AFS or because their local policies require a “court order.” Such policies are illegal. Should this happen to you, please contact us immediately for assistance.
Additionally, some law enforcement agencies require “proof of ownership.” This too is unlawful and preempted by the State law on the return of firearms. Generally, the law enforcement agencies forgo such policies when presented with the following provisions of the California Evidence Code:
- Evidence Code section 637: “Things which a person possesses are presumed to be owned by them.” They took the firearms from you, therefore they were possessed by you and are presumed owned by you. They are required to give you a property receipt when they seized your firearms. If they did, that is all you need. If they did not, they violated the law. Either way, the presumption is that you own the property.
- Evidence Code section 638, which states “a person who exercises acts of ownership over property is presumed to be the owner of it.” Your previous possession and your seeking the return of the property are both acts of exercising ownership, and again, the presumption is that you own the firearms.
In some extreme situations, the law enforcement agency must be notified of Penal Code section 33885, which states: “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.”
If an agency still refuses to return a firearm, then litigation may be necessary to enforce your rights to the firearm. It is recommended that this entire process be conducted by an attorney to protect the property owner from potential criminal prosecution, privacy rights, law enforcement intimidation tactics and harassment.