Churchill v. Harris

The Second Amendment Foundation has released a statement on their joint lawsuit with the CalGuns Foundation challenging the City and County of San Francisco’s and the City of Oakland’s refusal to return legally owned firearms to persons exonerated of a crime.

BELLEVUE, WA — The Second Amendment Foundation has filed a federal lawsuit against the police departments in San Francisco and Oakland, California for refusing to return firearms to people who had been charged with crimes, but subsequently cleared of any wrongdoing.

SAF is joined in the lawsuit by the Calguns Foundation and two private citizens. The case is known as Churchill, et al. v. Harris, et al.

The police agencies apparently are relying on a state Department of Justice document that requires proof of ownership of each firearm before they are returned. But Don Kilmer, counsel for the plaintiffs, has noted that, “In California, the Evidence Code makes it clear that simple possession is proof of ownership of almost all types of common property, including firearms. 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,” said SAF Executive Vice President Alan Gottlieb. “Our partners at the Calguns Foundation have properly argued that this is inexcusable, and they are right.

“We saw this sort of property theft following Hurricane Katrina,” Gottlieb recalled, “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.”

“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,” added Calguns Foundation chairman Gene Hoffman.

“This cannot be allowed to continue,” Gottlieb observed. “That’s why we have taken this action, and we expect to prevail.”

The CalGuns Foundation and the Second Amendment Foundation have filed suit against California Attorney General Kamala Harris, the City and County of San Francisco, and the City of Oakland over their refusal to return lawfully-owned firearms to their rightful owners after an investigation exonerated them. The case, Churchill et al v. Harris et al, is being brought in US District Court for the North District of California. The attorneys in the case are well-known California gun rights lawyers Don Kilmer and Jason Davis.

From the CalGuns Foundations on the suit:

San Carlos, CA (May 9, 2012) – In an important step to secure the rights of California gun owners, The Calguns Foundation, the Second Amendment Foundation, and two individual residents of California have filed a new federal lawsuit in San Francisco. The case, entitled Churchill, et. al. v. Harris, et al., alleges that the police departments of both San Francisco and Oakland are unlawfully refusing to return lawfully-owned firearms to individuals who have had charges dropped after police investigations proved that they had done nothing wrong.

The ongoing seizure of those firearms is a violation of the Second and Fourth Amendments to the Constitution. What’s more, the departments’ refusal to return property after all charges are dropped is theft.

“In California, the Evidence Code makes it clear that simple possession is proof of ownership of almost all types of common property, including firearms,” said Don Kilmer, attorney 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 not have violated the law.”

The Oakland and San Francisco Police departments appear to be relying on a Department of Justice document that is being attached to the required “Law Enforcement Gun Release”, or LEGR, reports indicating that the requester may lawfully own and possess firearms. The document claims that the requesting person has to provide proof of ownership for every firearm when they go to retrieve their seized property.

According to longstanding California law, every firearm seized during a police investigation must be inventoried; a copy of that list is given to the person from whom firearms are seized. Every law enforcement agency knows which person they took firearms from and what specific firearms were taken.

“It’s hard enough for a law-abiding gun owner to live through the uncertainty and fear caused by a false allegation or arrest, but to have the very people who are trusted and sworn to serve them then steal their property after they’ve been exonerated is inexcusable,” said Calguns Foundation chairman Gene Hoffman. “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.”

A copy of the complaint and case filings can be downloaded here. The full docket can be viewed at this link.