A pair of California cities and the state's Department of Justice are facing a federal lawsuit today because, plaintiffs claim, the police confiscated firearms during investigations but now refuse to return them – even after the subjects of the inquiries were cleared of any wrongdoing.
The Second Amendment Foundation, which has joined gun owners Douglas Churchill and Peter Lau in the lawsuit, say the cities are engaging in "deliberate theft of personal property."
"We saw this sort of property theft following Hurricane Katrina," SAF Executive Vice President Alan Gottlieb recalled in a statement, "and we took that case to federal court and won. Government agencies simply cannot seize private property and refuse to give it back by playing bureaucratic games."
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Gene Hoffman, chairman of the Calguns Foundation, which has also joined the case, explains, "Law-abiding Californians should not be forced to seek out expensive legal representation just to get back what is rightfully theirs in the first place."
According to court documents, Lau's firearms were confiscated by the Oakland Police Department when authorities were investigating his brother's suicide. Eventually, his guns were returned, all except one rifle the police deemed an "assault weapon." Lau's attorneys dispute the classification.
Churchill's firearms were confiscated by the San Francisco Police Department in January 2011 as part of an investigation, but the district attorney dismissed charges less than a month later. Nonetheless, police refuse to return seven of Churchill's weapons – including a Remington .22-caliber rifle and a Winchester 20-guage shotgun, among others.
Police, court documents suggest, are relying on a letter from the California Department of Justice instructing the police not to return firearms unless the alleged owners can present "proof of ownership," though the same letter admits the state may have no official records for "long guns" like Churchill's Remington.
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In Churchill's case, however, police officers presented him with a receipt for the firearms they confiscated. Churchill's attorneys argue that's good enough and the police need to return the weapons they took.
"In California, the Evidence Code makes it clear that simple possession is proof of ownership of almost all types of common property, including firearms," claims Don Kilmer, counsel for the plaintiffs. "The California Department of Justice is misleading police departments in such a way that they violate the rights of gun owners who were investigated and found to have not violated the law."
"What the police departments are doing is a deliberate theft of personal property, and they know it," added Gottlieb. "Our partners at the Calguns Foundation have properly argued that this is inexcusable, and they are right."
Names as defendants in the case are the cities of Oakland and San Francisco and their respective police departments, California Attorney General Kamala Harris and the state's Department of Justice. The case is currently before the U.S. District Court of the Northern District of California.
Officials in San Francisco did not respond to WND requests for comment, and in Oakland, officials explained they had not yet seen the legal action, so would withhold comment.
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The SAF claims to be the nation's oldest and largest tax-exempt education, research, publishing and legal action group focusing on the constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control. In addition to the landmark McDonald v. Chicago Supreme Court Case, SAF has previously funded successful firearms-related suits against the cities of Los Angeles; New Haven, CT; New Orleans; Chicago and San Francisco on behalf of American gun owners, a lawsuit against the cities suing gun makers and numerous amicus briefs holding the Second Amendment as an individual right.
In addition to the landmark McDonald v. Chicago Supreme Court case, SAF has been involved in a number of cases in recent years:
- SAF sued the state of California over a "vague" gun ban over a case in which a man twice was jailed and then cleared. The focal point is the definition of an "assault weapon." The statute's definition of weapons is so "vague and ambiguous," the group contends, that one man was arrested on two different occasions for violations but ultimately cleared of any wrongdoing. "It's an insult to be arrested once for violating a law that is so vague and ambiguous that law enforcement officers cannot tell the difference between what is and what is not a legal firearm under this statute," said Gottlieb, "but to be arrested and jailed twice for the same offense is an outrage."
- In New York, the organization has asked for a summary judgment that would strike New York City's $340 triennial fee for just owning a handgun. The legal brief explains that under U.S. Supreme Court rulings "the right to keep a handgun in the home for self-defense is a part of the 'core' of the Second Amendment's protections." The case, brought by SAF, the New York State Rifle and Pistol Association and individuals including an electrical contractor, a paramedic, CPA and woodworker, argues, "The city's $340 fee is inherently prohibitive and serves the impermissible purpose of discouraging the exercise of constitutional rights. While the city can charge a nominal fee to defray costs, the $340 fee is not nominal, and has never been calculated to defray costs."
- The organization has sued New Jersey and officials and judges over procedures that allowed them to refuse firearms permits for a kidnap victim, a man who carries large amounts of cash for his business and a civilian FBI employee who fears attacks from radical Islamists. The permissions were denied on the grounds people had not shown a "justifiable need." "Law-abiding New Jersey citizens have been arbitrarily deprived of their ability to defend themselves and their families for years under the state's horribly crafted laws," said a SAF spokesman. "The law grants uncontrolled discretion to police chiefs and other public officials to deny license applications even in cases where the applicant has shown a clear and present danger exists."
- The SAF filed a case on behalf of an honorably discharged veteran from the Vietnam War and names as defendants Attorney General Eric Holder and the Federal Bureau of Investigation. The case was filed in U.S. District Court for the District of Columbia on behalf of Jefferson Wayne Schrader. The question is whether the state of Maryland can deprive an individual of the right to possess a weapon over a misdemeanor. Schrader had been convicted of misdemeanor assault relating to a fight involving a man who previously had assaulted him in Annapolis. But he was denied the opportunity to receive a shotgun as a gift or to purchase a handgun for personal protection.
- SAF filed a claim against Maryland for a man who alleged the state was violating the Second Amendment by refusing to renew his handgun permit. Raymond Woollard originally was issued a carry permit after a man broke into his home during a family event in 2002. Woollard's permit was renewed in 2005 after the defendant in the case was released from prison. But state officials later refused to renew the permit, even though the intruder now lives some three miles from Woollard.
- SAF sued Westchester County, N.Y., because officials there were requiring that residents have a "good cause" to ask for a handgun permit. The federal lawsuit alleges the requirement conflicts with the U.S. Supreme Court ruling that the Second Amendment establishes a personal right to "keep and bear arms." Individual plaintiffs in the case are Alan Kachalsky and Christina Nikolov, both Westchester County residents whose permit applications were denied.