Once a legal firearm is properly ordered to the sheriff are the only dispostions permitted use for law enforcement purposes or destruction? Our sheriff has some that are of no use for LE purposes, but are otherwise usable for civil use.

It looks to me that we don't have any options other than use 'em or lose 'em. It seems wasteful to destroy them.

A touchy subject that has come up before in my practice. It sure would bite someone, though, if that "civil use" firearm later became State's Exhibit 1 at a murder trial, right?

That topic has come up and your point is well taken. It seems like a real pickle.

It seems clear to me that the answer is in the form of a chopsaw. It does not strike me as much of a waste given that 95% of the weapons we forfeit are a waste of steel, chrome, and plastic in the first place.

[This message was edited by John Greenwood on 08-29-08 at .]

My assumption is that Bob's initial question relates to the provisions of Article 18.18, which provide for the forfeiture of "prohibited weapons." Art. 18.18 requires that "prohibited weapons" be destroyed or forfeited to the law enforcement agency seizing the weapon. My first observation is that this provision would apply only to "prohibited weapons" seized and forfeited pursuant to 18.18. I do not think it would apply to weapons forfeited under Ch. 59, which provides much greater latitude in how the forfeited property can be used. My second observation is that 18.18 applies only to "prohibited weapons," as defined by the Penal Code. "Prohibted weapons" is limited to the laundry list in Section 46.05 of the Penal Code, which would not include run-of-the-mill handguns, rifles and shotguns. It only applies to weapons which could not be sold to the public anyway. (e.g., explosive weapons, machine guns, short-barrel frearms, silencers, switchblades, knuckles, armor-piercing ammo, chemical dispensing weapons, and zip guns.) Taking all of this into account, we regularly seize usable weapons under Ch. 59. For the most part, they are placed into service with the seizing agency. "Junk" weapons (Saturday Night Specials, broken firearms, or ones which show signs of neglect or misuse) are destroyed. If a weapon is seized that has no law enforcement use but some commercial value, I do not see any legal barrier to auctioning it off or selling it through a reputable dealer. As for the argument that putting serviceable legal weapons back on the street could lead to subsequent crime, how is that any different than arguing that one of the forfeited cars we auction might be used in a subsequent crime?

Check out 18.19, which deals with normal weapons. While I sympathize with the forfeited car analogy, no one will criticize law enforcement for selling a car. Not my call either way, thank goodness.

I assumed he was referring to Art. 18.19 that is not limited to prohibited weapons, and does not require a chapter 59 petition, but does include the language "destruction of the weapon or forfeiture to the state for use by the law enforcement agency holding the weapon."

Chapter 59 does not include this problematic language, but rahter specifically contemplates the sale of the contraband forfeited. Of course you have to have an offense listed under Chapter 59 to have the weapon be contraband in the first place and it does not include Felon in possession of a firearm, UCW, Deadly Conduct, trespassing, etc. So most of the seized guns are not subject to a Chapter 59 petition.

We just proceed under 18.19 and are happy to know that one more gun is off the streets.

[This message was edited by John Greenwood on 09-04-08 at .]

I was referring to Ch 18 cases as that is how the question was put to me by the SO. Now I'm going to go back and make sure they were not confused between the two when they asked me the question. I know I focused directly on the issue that was put to me and not on the other possibility. Thanks for your help. Re minds me of my favorite legal answer of all time to nearly an question..."It depends..." My kids hate that answer.

Maybe the distinction between the sale of a gun forfeited under chapter 59 as opposed to forfeited under 18.19 is that under chapter 59, you are concerned about the gun being State's Exhibit 1 in a criminal case, and under 18.19, you are concerned about the gun being Plaintiff's Exhibit 1 and the forfeiture order being Exhibit 2 in a wrongful death action against the County, the Sheriff, et al.

[This message was edited by John Greenwood on 09-05-08 at .]