Help Recovering Stolen Gun Being Held as Evidence

[Desert Dog]

I started to reply to another related thread, but after a couple of paragraphs realized that I was thread jacking, so I decided a new thread was more appropriate.

I have a revolver that was stolen nearly seven years ago. I had filed a theft report in the city where the gun was stolen, within an hour of discovering that it was missing. I was excited when I received a call a year later from my local PD telling me to come pick up the gun. When I got there, I was informed that the gun had already been sent back to the city where the criminal that had stolen my gun was arrested.

Turns out my revolver ended up in the hands of a Mexican national who used it to hold someone hostage. The revolver was never actually fired or anyone shot with it, yet I have been stonewalled at every turn trying to get it back. Last conversation with the (now second ) detective in charge ended with a reminder about the victim's right to use my gun as evidence. Not sure why it didn't occur to her that I'm also a victim and entitled to have my property returned to me. I'm told lawyers prefer to wave a gun in court, rather a photo of the same gun.

I continue to check in whenever something reminds me to do so. Hoping the statue of limitations will bring an end to the madness. I've been told to contact the State's Attorney General's Office. Others have advised that I need to petition the court to get it back. Yet another said to file a formal complaint with the Police Dept who is holding my property. Truly disappointed that I need to go through all this hoop jumping, in order to get my stolen property returned to me.

Can anyone here suggest the best course of action, other than trying to use an insurance company for leverage? TIA.

 

[cshoff]

Hire an attorney. It's unlikely you will get any satisfaction on your own. Even with an attorney representing you, I wouldn't be surprised if you don't get your gun back until AFTER the trial is held in the case in which it is being used as evidence.

 

[Old cop]

An interim step, prior to hiring an attorney, might be to send a formal letter to the chief of police outlining your complaint. I suggest this course b/c during my career I handled a similar situation (I was a sergeant at the time) and got the gun returned to the owner.

 

[s&wchad]

Wow, it's been six years and no trial yet. How can that be?

 

[growr]

I was in the same circumstance a number of years ago and shared my tale of woes with a dear friend of mine and shooting colleague (smallbore 4 position) who just happens to be a Federal Judge as well.

The very next day after sharing this with the Judge, I get a call from the evidence officer to come in tomorrow and pick up my handgun that was originally slated for destruction.

The evidence officer was NOT happy about releasing my handgun back to me and made it very clear on that. Very anti- firearm..was very vocal in that only THEY should be allowed to have a handgun.

TOO BAD! Amazing what a Federal judge can do when they are motivated....and I didn't even ASK him to do anything, he just took it upon himself to flex his muscle on my behalf.........

Randy

 

[Desert Dog]

Hire an attorney. It's unlikely you will get any satisfaction on your own. Even with an attorney representing you, I wouldn't be surprised if you don't get your gun back until AFTER the trial is held in the case in which it is being used as evidence.

My attorney is now billing at $275 per hour. The revolver is a S&W 242 that I bought (along with a 296) when they were closing out these one-year-wonder of a homely creature for a bit under $350. Gun is worth $700 or so now, IF the police haven't etched the case number on it or otherwise defaced the gun, and IF the criminal kept it in the same prisitine condition as when it was stolen from me. Hard for me to make the math work, given the potential risk of failure or disappointment.

There is also a bit of principal involved here. Even if the 'victory' is mostly Pyrrhic, I would like to think a citizen can get their stolen property returned to them, without the necessity of using an attorney. I'll grant you, this looks to be incredibly wishful/naive thinking of my part, based on my success thus far.

 

[Desert Dog]

An interim step, prior to hiring an attorney, might be to send a formal letter to the chief of police outlining your complaint. I suggest this course b/c during my career I handled a similar situation (I was a sergeant at the time) and got the gun returned to the owner.

I'm likely going to try this first. There is a new Chief that seems to be a no-nonsense guy and I think that I need to at least see what he has to say about the matter. I have names and dates of everyone of his officer's that I've spoken with along the way, and perhaps he will see that I've made more than a good faith effort at being patient with the process.

 

[Desert Dog]

Wow, it's been six years and no trial yet. How can that be?

The thief was a Mexican national who has fled back to Mexico. The detective told me they have a warrant out for him and they are holding on to the hope that he will return, because he still has family living here.

 

[M29since14]

Unless it was an exceptionally valuable pistol, or you know a lawyer who will handle this on the real-cheap, about your only choice is to do everything yourself. I think the idea of contacting the Chief seems logical. Send him a politely written request with all the specifics. Include good copies of everything you have, but keep the originals. Nothing will stop your request quicker than a government employee having to take time to track down details if it involves something they are not interested in - like your handgun. Send it by certified mail with signed delivery receipt required. Follow it up with a phone call a few days after you think he got the letter and see what he says.

I wouldn't spend a lot of cash on this. After seven years, who knows what condition the pistol may be in... ? If not properly maintained, you may not even want it back. And if your insurance company has paid you for the loss, I suppose legally it is no longer your gun.

 

[arjay]

If contacting the chief doesn't work,maybe a little media attention would do it.Bureacrats really don't like being noticed.

 

[Fishinfool]

Desert Dog

The "Detective" has no real say or concern that you get the weapon back. If a nice conversation with the new chief does not work, go to the court house that has jurisdiction where the police dept. is located, and file petition with the court thru the court clerk describing the situation, and asking for the return of your property. Chances are a judge will order it returned without so much as a hearing.

Larry

 

[Desert Dog]

I was in the same circumstance a number of years ago and shared my tale of woes with a dear friend of mine and shooting colleague (smallbore 4 position) who just happens to be a Federal Judge as well.

The very next day after sharing this with the Judge, I get a call from the evidence officer to come in tomorrow and pick up my handgun that was originally slated for destruction.

The evidence officer was NOT happy about releasing my handgun back to me and made it very clear on that. Very anti- firearm..was very vocal in that only THEY should be allowed to have a handgun.

TOO BAD! Amazing what a Federal judge can do when they are motivated....and I didn't even ASK him to do anything, he just took it upon himself to flex his muscle on my behalf.........

Randy

Truly wish I had a Federal judge in my circle of shooting buddies. Alas, most of my LE friends aren't local and don't have the required pull to expedite the return of my property.

Interesting attitude from the evidence officer. I'm still appalled by the lack of interest in righting this obvious wrong. I'm a victim of a crime, but that doesn't seems to elicit even an ounce of empathy from those holding my property.

 

[Desert Dog]

Desert Dog

The "Detective" has no real say or concern that you get the weapon back. If a nice conversation with the new chief does not work, go to the court house that has jurisdiction where the police dept. is located, and file petition with the court thru the court clerk describing the situation, and asking for the return of your property. Chances are a judge will order it returned without so much as a hearing.

Larry

Excellent idea. I started with the detective, after talking with the evidence officer (that broke the news to me that my gun made a u-turn and was headed back to the place where the criminal was arrested) suggested that I do so. I was hoping for a simple solution, but clearly that didn't happen.

Do you know exaclty what sort of petiton I need to file? Should I direct such a petition to the judge that is handling is associated with the case?

 

[Sebago Son]

Heavy Tin...

"... I get a call from the evidence officer to come in tomorrow and pick up my handgun... The evidence officer was NOT happy about releasing my handgun back to me and made it very clear on that. Very anti- firearm..was very vocal in that only THEY should be allowed to have a handgun."

Randy,

Being abused by a law enforcement officer due to his political leanings while you attmepted to do as directed should have earned this moron a written reprimand. I would have marched right into the Chief's office and demanded exactly that.

Drew

 

[Fishinfool]

Desert Dog

When you file a "petition with the court", you are basically asking a judge for something. At this point, I would think the only involvement a particular judge would have is in maybe signing an arrest warrant at the time the suspect was identified. Just go to the clerks office, explain the situation, and they should help you file the appropriate paperwork. If you are called in for a hearing, its something you can do yourself - its not "LA Law", and you wont be citing case law, etc. Just explain your side when asked to do so, and the judge will make a decision. Good Luck

Larry

 

[Desert Dog]

Desert Dog

When you file a "petition with the court", you are basically asking a judge for something. At this point, I would think the only involvement a particular judge would have is in maybe signing an arrest warrant at the time the suspect was identified. Just go to the clerks office, explain the situation, and they should help you file the appropriate paperwork. If you are called in for a hearing, its something you can do yourself - its not "LA Law", and you wont be citing case law, etc. Just explain your side when asked to do so, and the judge will make a decision. Good Luck

Larry

Thanks for the tips. The case has mutiple defendants being tried, which is why I thought the judge presiding over the case might be helpful. I need to look up the case again (it's online here) and take a look at the progress (if any) and see whether this case has been dismissed or not.

 

[Bullet Bob]

One thing you haven't mentioned (unless I missed it) is what city the gun is being held in. If it's somewhere like Chicago, good luck

 

[COL Jagdog]

Desert Dog

The "Detective" has no real say or concern that you get the weapon back. If a nice conversation with the new chief does not work, go to the court house that has jurisdiction where the police dept. is located, and file petition with the court thru the court clerk describing the situation, and asking for the return of your property. Chances are a judge will order it returned without so much as a hearing.

Larry

Desert Dog -- this is good advice -- I would use both steps --
certified letter to Chief of Police whose evidence room is holding the gun and a Motion and Rule For Return of Property to be filed with the court where the case is pending -- you will need the case caption (i.e. State of Louisiana vs Jorge Alvarez, for example) and the docket number (the actual court docket number assigned to the case -- Docket # 2566-2006, for example) -- put that at the top of your Motion, then use simple numbered paragraphs "Now into court, comes Joe Smith,movant, a citizen and resident of XYZ, who represents to this honorable court that:

1. I, Joe Smith am the owner of a certain Smith & Wesson revolver, Model No. _ , serial number ___, that was stolen from my residence on or about August __, 2006. The theft of my gun was immediately reported to the local police and a copy of the police report is attached as Exhibit A to this motion. (Note: you can also attach a copy of your purchase order/sales receipt if you have a copy).

2. Said Smith & Wesson revolver was recovered by the ___ Police Department on Sept ___ 2007 and is being held for evidence regarding the charges against defendant Jorge Alvarez, in the above-captioned matter currently pending before this court.

3. Six years have elapsed since the institution of said charges and movant desires that his S & W firearm be returned to him. Movant suggests to the court that appropriate photographs of said weapon, including the serial number may be obtained by the prosecutor for use as evidence in this matter, thus allowing the release of the gun to movant, who has been deprived of theuse of his property for over 7 years.

4. Movant desires that this court order the release of the S & W Model __, serial # ---- to movant after due proceedings had.

Wherefore, movant John Smith requests that a copy of this motion be served on _____ Police Department and on the District Attorney's office, setting a date and time for said hearing and ordering ____ Police Department and the District Attorney's office to show cause, if any they can, why movant's S & W Model ____, serial # ----- should not be returned to him immediately.

By: John Smith (In Proper Person) address, phone #

You can prepare this motion yourself (fill in appropriate info in the blanks, using case caption and docket #) and file it yourself (in most states, there is no cost for filing motions in criminal cases) -- ask the clerk of court's office how to have it served on the Police dept and D.A's office. You will need to file an original and have service copies to be served on police dept and DA. Keep copies for yourself. If the place where the case is pending has a "duty judge" assigned, you may bring a copy to the judge and ask him to assign it for hearing. WHen it gets assigned for hearing, show up and tell the judge your side of the story and request that your gun be returned. Judges are usually very patient with laypersons who file their own pleadings and you might tell the judge that you filed your motion because it was not cost effective to hire a lawyer to do so. While some jurisdictions are pro-active about releasing evidence, others need some "prompting". Bear in mind that the gun is your property, you are simply asking to have it returned -- the authorities cannot hold it in limbo forever. Since the police or DA might argue that they want the gun (to present it to the jury in court at a trial) -- tell the judge that there is a low-cost alternative (you want to give the judge an equitable argument why your gun should be returned) -- argue that good quality photos of the gun will suffice for evidence -- they have no right to hold your gun for however long they want. Some states have specific laws/procedures for having evidence returned -- you can research that for the state where the case is pending.

Hope this helps -- you will at least get the judges and the DA's attention -- and hopefully, you will get an empathetic judge who orders it returned or gives a timeline for it's return. You can PM me or email me if you have any specific questions.

All the best,

Bernie

 

[Desert Dog]

Desert Dog -- this is good advice -- I would use both steps --
certified letter to Chief of Police whose evidence room is holding the gun and a Motion and Rule For Return of Property to be filed with the court where the case is pending -- you will need the case caption (i.e. State of Louisiana vs Jorge Alvarez, for example) and the docket number (the actual court docket number assigned to the case -- Docket # 2566-2006, for example) -- put that at the top of your Motion, then use simple numbered paragraphs "Now into court, comes Joe Smith,movant, a citizen and resident of XYZ, who represents to this honorable court that:

1. I, Joe Smith am the owner of a certain Smith & Wesson revolver, Model No. _ , serial number ___, that was stolen from my residence on or about August __, 2006. The theft of my gun was immediately reported to the local police and a copy of the police report is attached as Exhibit A to this motion. (Note: you can also attach a copy of your purchase order/sales receipt if you have a copy).

2. Said Smith & Wesson revolver was recovered by the ___ Police Department on Sept ___ 2007 and is being held for evidence regarding the charges against defendant Jorge Alvarez, in the above-captioned matter currently pending before this court.

3. Six years have elapsed since the institution of said charges and movant desires that his S & W firearm be returned to him. Movant suggests to the court that appropriate photographs of said weapon, including the serial number may be obtained by the prosecutor for use as evidence in this matter, thus allowing the release of the gun to movant, who has been deprived of theuse of his property for over 7 years.

4. Movant desires that this court order the release of the S & W Model __, serial # ---- to movant after due proceedings had.

Wherefore, movant John Smith requests that a copy of this motion be served on _____ Police Department and on the District Attorney's office, setting a date and time for said hearing and ordering ____ Police Department and the District Attorney's office to show cause, if any they can, why movant's S & W Model ____, serial # ----- should not be returned to him immediately.

By: John Smith (In Proper Person) address, phone #

You can prepare this motion yourself (fill in appropriate info in the blanks, using case caption and docket #) and file it yourself (in most states, there is no cost for filing motions in criminal cases) -- ask the clerk of court's office how to have it served on the Police dept and D.A's office. You will need to file an original and have service copies to be served on police dept and DA. Keep copies for yourself. If the place where the case is pending has a "duty judge" assigned, you may bring a copy to the judge and ask him to assign it for hearing. WHen it gets assigned for hearing, show up and tell the judge your side of the story and request that your gun be returned. Judges are usually very patient with laypersons who file their own pleadings and you might tell the judge that you filed your motion because it was not cost effective to hire a lawyer to do so. While some jurisdictions are pro-active about releasing evidence, others need some "prompting". Bear in mind that the gun is your property, you are simply asking to have it returned -- the authorities cannot hold it in limbo forever. Since the police or DA might argue that they want the gun (to present it to the jury in court at a trial) -- tell the judge that there is a low-cost alternative (you want to give the judge an equitable argument why your gun should be returned) -- argue that good quality photos of the gun will suffice for evidence -- they have no right to hold your gun for however long they want. Some states have specific laws/procedures for having evidence returned -- you can research that for the state where the case is pending.

Hope this helps -- you will at least get the judges and the DA's attention -- and hopefully, you will get an empathetic judge who orders it returned or gives a timeline for it's return. You can PM me or email me if you have any specific questions.

All the best,

Bernie

PM Sent.

I am stunned by the quality of this reply. This is far beyond kind and I truly appreciate the helping hand for this layperson trying to navigate the system. As mentioned in the PM, I am heading out of town this week and will start to work on filing my Motion and Rule for Return of Property in September. I'll post back when I have more to report.

Many, many thanks for detail reply. I am grateful beyond words.

 

[Dpris]

One other thing not addressed is your mention of an insurance company.
If you were paid fror the loss of the gun after its original theft from you, it's no longer your gun & you no longer have any legal rights to re-possess.
If the insurance company paid off on it, the gun belongs to them.
Denis