Gun Seizure After Domestic Violence Arrest

[noonecouldeverguesswhoiam]

This question regards Washington state law.

I was arrested for assault in the 4th domestic violence around last Feb. 4th. For good reason, no charges were ever filed. The cops took my gun away for "safekeeping" and a month ago I was told the prosecutors office has it and "my case hasn't gone through the process yet". Since then, somone from their office called the "victim" and the "victim" told them everything was fine and it was a misunderstanding, etc. This state's law requires arrest for this offense in case of even just probable cause.

I have a valid concealed weapons permit for the gun, NO criminal history of any kind, and would like to know when I can have my rightfully owned property back. Does anyone know what restrictions or deadlines they have? I seem to remember something about no seizures without due process of law. I'm sure they "want to keep guns off the streets" but without proper cause, that would seem to be "deprivation of rights under color of law".

[Dogmatique]

This question regards Washington state law.

I was arrested for assault in the 4th domestic violence around last Feb. 4th. For good reason, no charges were ever filed. The cops took my gun away for "safekeeping" and a month ago I was told the prosecutors office has it and "my case hasn't gone through the process yet". Since then, somone from their office called the "victim" and the "victim" told them everything was fine and it was a misunderstanding, etc.

So NO charges were ever filed? You're absolutely sure of this? There is no RO/TPO?

[noonecouldeverguesswhoiam]

So NO charges were ever filed? You're absolutely sure of this? There is no RO/TPO?

There was an automatic restraining order and there was nominal bail. Bail was made. The court specifically stipulated that prosecution had to file charges by a specific date and time, or the bail had to be released, and the temporary restraining order and all other conditions would be nullified. No charges were ever filed. When I called the Sheriff's office weeks ago to get my gun back, they called the prosecutor's office and then called me back, telling me that my case "hadn't been through the process yet", which I thought had to be at least partial B.S., since they had already allowed bail & the restraining orders to lapse weeks prior, seeming to indicate some decision had evidently been made.

[Dogmatique]

There was an automatic restraining order and there was nominal bail. Bail was made. The court specifically stipulated that prosecution had to file charges by a specific date and time, or the bail had to be released, and the temporary restraining order and all other conditions would be nullified. No charges were ever filed. When I called the Sheriff's office weeks ago to get my gun back, they called the prosecutor's office and then called me back, telling me that my case "hadn't been through the process yet", which I thought had to be at least partial B.S., since they had already allowed bail & the restraining orders to lapse weeks prior, seeming to indicate some decision had evidently been made.

Call 'em again. There's really not much you can do at this point but keep bugging them - assuming the RO has expired.

(If the RO was still in play, you'd have to wait anyway)

[noonecouldeverguesswhoiam]

Call 'em again. There's really not much you can do at this point but keep bugging them - assuming the RO has expired.

(If the RO was still in play, you'd have to wait anyway)

There can be no doubt it has expired. It just seems strange, isn't there some law about how long they can keep my property without due process? I guess if they don't give it back eventually, I just sue for it?

[cdwjava]

You say that the order MUST have expired ... well, maybe it has NOT expired.

Have you confirmed whether a protective order exists or not? If one exists, then that easily explains why the gun has not been released to you.

A quick read of RCW 9.41.098 seems to indicate that only the court can determine whether this firearm can be returned to you. As such, it makes sense that you are being told that the case has not gone through the process. It may take a judge's order to return the firearm.

[noonecouldeverguesswhoiam]

You say that the order MUST have expired ... well, maybe it has NOT expired.

Have you confirmed whether a protective order exists or not? If one exists, then that easily explains why the gun has not been released to you.

A quick read of RCW 9.41.098 seems to indicate that only the court can determine whether this firearm can be returned to you. As such, it makes sense that you are being told that the case has not gone through the process. It may take a judge's order to return the firearm.

OK, I thank everyone for trying to help, but there seems to be misunderstanding about the TRO situation, so, let me try to settle that once and for all. The order was conditional to start with. The court ordered that there would be a temporary restraining order in effect which would remain so unless the prosecution failed to file charges in that court, by Feb 9, 2010 at 5p.m. . They failed to do so. I have checked numerous times on the internet (washington state courts website) and when the S/O called the prosecutors to find out about my gun, weeks later, if charges had been filed, I'm sure they'd have said so. Plus, if you'd seen the report, you'd understand why they didn't. Even the cop that took me to jail told me I wouldn't have to go to court for it, that since there was P.C. they legally had to arrest anyway, that they could be personally sued if they didn't, etc.

If you all know something I don't, please name your source so I can investigate.

As for RCW 9.41.098, none of that section applies to me anyway. I was never even accused of using a weapon in a crime. And no court ever ordered forfeiture anyway. The S/O took it & gave it to the Prosecutor, who is keeping it for no apparent reason. From what the law says, the court would have to make a specific order, and they didn't. The TRO and arrest were automatic, and the fact that the Prosecutor let all that lapse, and haven't doen anything in a 1 1/2 months says something, so I'd like my property back.

[aardvarc]

Regardless that the order SHOULD have expired, there are a lot of potential errors in that process and it's not as automated as one might think. Your very first step needs to be to get documentation that the order is no longer in effect. If it's not, then the next step is to follow Carl's advice and petition the court to order their return.