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  #51  
Old 02-26-2019, 07:12 PM
BoulderTroll BoulderTroll is offline
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Quote:
Originally Posted by RickD427 View Post
Boulder Troll,

No "Pocket Lawyer" here. My background is close to 40 years service as an LEO and one of my final assignments was maintaining the operational polices of a large Sheriff's Department. I'm not a lawyer, but often worked with deputy county counsel, and special counsel performing oversight duties for the Board of Supervisors, That position required me to research the law, and to author policies that implemented the law.

One thing that my agency often learned the hard way, and where I saw other agencies learn the hard way, is that the way "we always did things" didn't make the process lawful. The lesson was often learned in civil court and resulted in the payment of damages.

I'm not making any inference that agency policy can trump state law. Actually, it's very much the opposite. State law prevails over policy. In this case, the state law provides that the finder is entitle to take title to found property if the owner cannot be found.

Rather than call names, if you believe that I've made statements in error, please cite the statute(s) or published case law, showing that to be so. I was good enough to publish the statutes supporting my view and I'd be appreciative if you would do the same.
In response to your comment in bold, I did cite law, but so far you've ignored it. The PC is 26500, but I assumed you knew it was a law without needing the cite.

I don't disagree with you that lawsuits can result from "the way we've always done it" mindset, I've actually been involved in one personally. But as far as citing code sections back and forth, as I said, that's not my thing. I'm not an attorney and I don't play one on TV. People who make more money than me, and are readily available to field this very question, have already made their decision on this matter. Department policy to incinerate found/ unclaimed firearms did not happen in a vacuum. County Counsel and the DA's Office get consulted on those types of decisions. Which I shouldn't have to tell you, since you said you've done it yourself.

Your comment that I quoted seemed to represent that if an agency had a policy that allowed for the destruction of these firearms, it would be OK, in spite of your personal view that it is in violation of state law. Did I read that statement wrong? If so, could you clarify for me what you meant?
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Last edited by BoulderTroll; 02-26-2019 at 07:15 PM.
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  #52  
Old 02-26-2019, 09:33 PM
magazineman magazineman is offline
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I suspect that very few, if any, of those destroyed firearms were "found" guns in the context I'm asking about:

-------------I find a gun on the ground and turn it in to the Police.----------

I don't think this happens very often!

Those destroyed guns were most likely confiscations from suspects / banned individuals, recovered stolen weapons, and voluntary surrenders.

When legal owners cannot be found or are uninterested in ownership (insurance companies having already paid the claims) the guns get destroyed.

I'm speaking about a "finders keepers" situation. I think Rick's got it right.

Although the department may balk & push back, at least I have some legal ammo on my side to use in the battle.

All I need now is to find one! Btw, found a nice Zippo lighter a couple days ago. Today it was just a new Dorman's Pack of lock washers. I can always use more of those
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  #53  
Old 02-26-2019, 09:36 PM
magazineman magazineman is offline
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Oh, I also saw a tire iron on the roadside today too. But I couldn't stop for it. Tomorrow if it's still there I'll get it.

I'll then include it with the Buick I'm selling if it's the right size.
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  #54  
Old 02-26-2019, 09:47 PM
USMM guy USMM guy is online now
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Quote:
Originally Posted by magazineman View Post
Oh, I also saw a tire iron on the roadside today too. But I couldn't stop for it. Tomorrow if it's still there I'll get it.

I'll then include it with the Buick I'm selling if it's the right size.
As an ordinary seaman on a ship that I was chief mate on. He was very frank in that he had at one time been a homeless bum around Newark NJ. He had much to his credit gotten his life back together at some point. He told me that the things that he used to find as he jockeyed his shopping cart around the waterfront looking for things to scavenge and sell was mind boggling.
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  #55  
Old 02-26-2019, 09:53 PM
BoulderTroll BoulderTroll is offline
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Quote:
Originally Posted by magazineman View Post
I suspect that very few, if any, of those destroyed firearms were "found" guns in the context I'm asking about:

-------------I find a gun on the ground and turn it in to the Police.----------

I don't think this happens very often!

Those destroyed guns were most likely confiscations from suspects / banned individuals, recovered stolen weapons, and voluntary surrenders.

When legal owners cannot be found or are uninterested in ownership (insurance companies having already paid the claims) the guns get destroyed.

I'm speaking about a "finders keepers" situation. I think Rick's got it right.

Although the department may balk & push back, at least I have some legal ammo on my side to use in the battle.

All I need now is to find one! Btw, found a nice Zippo lighter a couple days ago. Today it was just a new Dorman's Pack of lock washers. I can always use more of those
You're of course welcome to give it a shot (pun intended), if you ever find a gun, but I believe there is a serious flaw in Rick's logic. The laws regarding found property appear, at least to me, to deal with items that are not registered and/ or controlled. If you found a BMW M3, and no owner could be contacted, it doesn't simply become your property if unclaimed after 60 days. At a minimum, it would be sold at auction. It's not "finders keepers" (and there are laws in place, at least in California, governing the auctioning of found property).

Secondly, firearms are a controlled item. If you find a bottle of Vicodin on the street and nobody claims it, it doesn't become your property. I specifically chose a Schedule 2 drug for my analogy, because it is not "contraband", just as a firearm is not contraband. But both require legal process to be in lawful possession of.

Lastly, I'd ask you, since you agree with Rick's theory, how do you answer the question of 26500PC? An LE agency is not an FFL. So how do they transfer a firearm to you without being guilty of being an unlicensed dealer?

Magazineman, I forgot to add: you are assuming that your exact scenario has not happened, and it has, I can assure you. Sure, most of the guns we destroy are either turned in during "gun buybacks", collected as evidence, turned in for restraining order or 5150 WI type situations, etc. That is generally true, but not always. I can think of a few instances right off the top of my head where firearms were simply "found", and I can promise you, none were sold at auction or returned to the finder. It actually happens more often than you'd think.
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Last edited by BoulderTroll; 02-26-2019 at 09:57 PM.
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  #56  
Old 02-26-2019, 10:13 PM
BoulderTroll BoulderTroll is offline
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Magazineman, when folks give legal advice on forums, be very careful if you decide to follow it. Rick was kind enough to provide the civil code for his comment, but he also misrepresented what that code says:

Quote:
Originally Posted by RickD427 View Post

If the law enforcement agency is unable to locate the owner, you are entitled to claim title to the property. Please refer to California Civil Code section 2080.3.
In his summary of 2080CC, he completely ignored this part:

"Notwithstanding the provisions of Section 2080.3 or Section
2080.6, the legislative body of any city, city and county, or county
may provide by ordinance for the care, restitution, sale or
destruction of unclaimed property in the possession of the police
department of such city or city and county or of the sheriff of such
county."
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Last edited by BoulderTroll; 02-26-2019 at 10:15 PM.
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  #57  
Old 02-27-2019, 01:38 AM
RickD427 RickD427 is offline
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Quote:
Originally Posted by BoulderTroll View Post
In response to your comment in bold, I did cite law, but so far you've ignored it. The PC is 26500, but I assumed you knew it was a law without needing the cite.

I don't disagree with you that lawsuits can result from "the way we've always done it" mindset, I've actually been involved in one personally. But as far as citing code sections back and forth, as I said, that's not my thing. I'm not an attorney and I don't play one on TV. People who make more money than me, and are readily available to field this very question, have already made their decision on this matter. Department policy to incinerate found/ unclaimed firearms did not happen in a vacuum. County Counsel and the DA's Office get consulted on those types of decisions. Which I shouldn't have to tell you, since you said you've done it yourself.

Your comment that I quoted seemed to represent that if an agency had a policy that allowed for the destruction of these firearms, it would be OK, in spite of your personal view that it is in violation of state law. Did I read that statement wrong? If so, could you clarify for me what you meant?
Boulder Troll,

I dealt with PC 25600 way back in Post #46. PC 26500 in no way authorizes a LE agency to destroy found firearms that are claimed by the finder. Let's take a look at what the section says. Here is the exact text:

(a) No person shall sell, lease, or transfer firearms unless the person has been issued a license pursuant to Article 1 (commencing with Section 26700) and Article 2 (commencing with Section 26800) of Chapter 2.

(b) Any person violating this article is guilty of a misdemeanor.

All that this section does is to require that the transfer of a firearm occur through an FFL. There is no destruction authority anywhere in it. As was previously discussed in Post #46, the finder of a found firearm takes title to the firearm under Civil Code section 2080.3. Possession of the firearm must transferred by an FFL. If the agency lacks an FFL, that doesn't create an entitlement for them to destroy the firearm, it only creates a requirement for the services of an FFL to transfer the firearm. There are a great many FFL's in the state of California that can provide such a service.

As to the except of Civil Code section 2080.4 that you posted above allowing for the destruction of unclaimed property, please note that it is inapplicable where the finder makes a claim to the property under section 2080.3.

I'm a little confused about your reference to a statement that you attributed to me about a policy allowing destruction of found property in violation of state law. I did not make such a statement. Can you please point out the post # containing such a statement, and I'll clarify any statement made. I just need to know what you're talking about first.
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  #58  
Old 02-27-2019, 02:06 AM
BoulderTroll BoulderTroll is offline
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Quote:
Expect some resistance, few agencies have policies governing the release of found firearms, but the lack of an agency policy doesn't permit them to ignore the statute.
Quote:
Originally Posted by RickD427 View Post

I'm a little confused about your reference to a statement that you attributed to me about a policy allowing destruction of found property in violation of state law. I did not make such a statement. Can you please point out the post # containing such a statement, and I'll clarify any statement made. I just need to know what you're talking about first.
This is now the second time I've quoted this exact statement you made, and you keep acting as if you've never seen it before. If you ask me to quote it a third time I'm going to have to assume you're just screwing with me.

In your statement above (that I've quoted to you twice now), you are inferring that although you believe it is unlawful for agencies to destroy found property, you agree that if department policy allows it, it is OK. In other words, department policy can override state law. If that isn't what this sentence means, again, please tell me what it was you were actually trying to say.

I'll make the inference a little more clear for you; "the lack of a policy doesn't permit them to ignore the statute".... ergo, the presence of a policy would. How can I read your comment any other way? The meat is not in what you said, it's in what you implied.

Also, I disagree with your interpretation of 2080CC, which is why I prefer to leave these discussions up to attorneys and court officers. I believe "unclaimed" to be referring to the "loser" of the found property, not the person who locates it. If "unclaimed" referred to the finder, as you're suggesting, there there would be no such thing as "unclaimed property"...

The entire discussion is moot. If magazineman ever finds a handgun while out on his travels, he will turn it in to the local LE agency, petition to receive it as the "finder", and be told "No", possibly accompanied by some laughter. Do you disagree?
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Last edited by BoulderTroll; 02-27-2019 at 02:23 AM.
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  #59  
Old 02-27-2019, 02:21 AM
RickD427 RickD427 is offline
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Quote:
Originally Posted by BoulderTroll View Post
This is now the second time I've quoted this exact statement you made, and you keep acting as if you've never seen it before. If you ask me to quote it a third time I'm going to have to assume you're just screwing with me.

In your statement above (that I've quoted to you twice now), you are inferring that although you believe it is unlawful for agencies to destroy found property, you agree that if department policy allows it, it is OK. In other words, department policy can override state law. If that isn't what this sentence means, again, please tell me what it was you were actually trying to say.

I'll make the inference a little more clear for you; "the lack of a policy doesn't permit them to ignore the statute".... ergo, the presence of a policy would. How can I read your comment any other way? The meat is not in what you said, it's in what you didn't say (but you let us imply).

Also, I disagree with your interpretation of 2080CC, which is why I prefer to leave these discussions up to attorneys and court officers. I believe "unclaimed" to be referring to the "loser" of the found property, not the person who locates it.
Boulder Troll,

No, I'm not screwing with you. I'm just having a hard time understanding you. My statement that "The lack of a policy doesn't permit them to ignore the statute" means just that. If an agency doesn't have a policy spelling out how to return a found item to its finder they don't acquire the ability to destroy the object.

There is no inference that they could ignore the statute if they did have a policy. The fact remains that statutes take precedence over agency policy in all cases.

I hope that makes my statement clear for you.
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  #60  
Old 02-27-2019, 12:59 PM
magazineman magazineman is offline
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Boulder Troll-------- If this situation occurred, YES, I would fully expect the local police to dismiss the idea of my ever gaining legal possession.

BUT, with that assumed, we must also recognize that Rick's argument is not without merit.

So what we are left with is a contest between different points of law. This is nothing new. Happens all the time. One side, or the other, may prevail.

So the laughter of cops is not really an issue. The real question is: Do I have ANY legal basis, at all, to claim ownership? Answer: YES, I do have some.

So I would try. Opinions on which side would win the fight is guesswork.

What's NOT guesswork is that I would lose a legal battle to obtain possession of my neighbor's house. Because I have no basis, or standing in that argument at all.

If there's a shot, I would take it. As long as the squeeze was light & the juice was worth it. Or even 50/50.

I'm retired, I have time. But thanks for your input, it too is not without merit.
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  #61  
Old 02-27-2019, 02:42 PM
BoulderTroll BoulderTroll is offline
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Quote:
Originally Posted by magazineman View Post
Boulder Troll-------- If this situation occurred, YES, I would fully expect the local police to dismiss the idea of my ever gaining legal possession.

BUT, with that assumed, we must also recognize that Rick's argument is not without merit.

So what we are left with is a contest between different points of law. This is nothing new. Happens all the time. One side, or the other, may prevail.

So the laughter of cops is not really an issue. The real question is: Do I have ANY legal basis, at all, to claim ownership? Answer: YES, I do have some.

So I would try. Opinions on which side would win the fight is guesswork.

What's NOT guesswork is that I would lose a legal battle to obtain possession of my neighbor's house. Because I have no basis, or standing in that argument at all.

If there's a shot, I would take it. As long as the squeeze was light & the juice was worth it. Or even 50/50.

I'm retired, I have time. But thanks for your input, it too is not without merit.
If you have the time and motivation, nobody could fault you for giving it a shot, if you ever find yourself in this situation.

That said, I get the vibe that you and Rick believe these are uncharted legal waters, just waiting for the Captain James Cook of gun finding to come along and plant a flag on the shores of found property ownership. I'm convinced that's not the case. The most widespread agency policy in the US is "Lexipol". It was written not by department administrators, but by a team of risk management attorneys. So when the destruction of found firearms is the industry standard, and supported by policies in agencies across the country that were written by attorneys, I have an exceptionally hard time believing that it is without consideration or legal justification.

My prediction for your scenario, should it ever happen, is this: Your attorney will hear your case, make a phone call or two to County Counsel, and then call you back, telling you that you have no case, and better luck next time. If I'm wrong, and you win, then please come back here and enlighten us all, and I will be the first to eat crow.
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Last edited by BoulderTroll; 02-27-2019 at 02:58 PM.
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  #62  
Old 02-27-2019, 11:22 PM
magazineman magazineman is offline
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I think the crows are safe for now. I haven't found a gun yet.

I also have not helped Sophia Vegara change a tire-------- yet!

------------------- Still hoping!
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  #63  
Old 03-03-2019, 08:21 AM
Techman1 Techman1 is offline
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One of the factors that you are leaving out is you. Who are you?
Retired LEO finds gun?
Current LEO? Someone tight or well known to the governing chief?
Who turns in the gun may affect this.

Last edited by Techman1; 03-03-2019 at 12:43 PM.
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  #64  
Old 03-03-2019, 02:46 PM
magazineman magazineman is offline
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Techman1------- I agree, current or retired LE would probably have an advantage. But I'm just a regular dude.

My only unusual qualifier is that I hold a CCW License in San Diego. Not many people do.

However, that probably would not factor in much.
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  #65  
Old 03-20-2019, 01:49 PM
magazineman magazineman is offline
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It was just shown on the local news that here in Oceanside San Diego county a couple found found two guns in the gutter.

On a morning walk in a residential neighborhood they found a loaded pump shotgun and a loaded & COCKED! stainless .357 D/A revolver.

---------------Jeebus! Kids walking to school would have been strolling there an hour later. That could have gone very badly.

Also, had I been on that street I would have seen those guns. I'm always scanning for stuff. My find yesterday was not as dramatic: A new pair of pruning shears. Hey, I can use 'em.
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  #66  
Old 03-20-2019, 06:45 PM
jjfitch jjfitch is offline
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Quote:
Originally Posted by magazineman View Post
It was just shown on the local news that here in Oceanside San Diego county a couple found found two guns in the gutter.

On a morning walk in a residential neighborhood they found a loaded pump shotgun and a loaded & COCKED! stainless .357 D/A revolver.

---------------Jeebus! Kids walking to school would have been strolling there an hour later. That could have gone very badly.

Also, had I been on that street I would have seen those guns. I'm always scanning for stuff. My find yesterday was not as dramatic: A new pair of pruning shears. Hey, I can use 'em.

Man, you need to get a life!

And no they will not be able to claim ownership of found firearms ever, since they never owned them in the first place.

Cheers,
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Last edited by jjfitch; 03-20-2019 at 08:40 PM.
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  #67  
Old 03-20-2019, 07:26 PM
magazineman magazineman is offline
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----------- Get a life? My life is great. Part of that is having effortless awareness of my surroundings.

I see & hear things that other folks, lost in their troubles, never notice. My life is far richer because of this.

-------- Also, note that on this thread there have been legal reasons why finders can claim guns and also reasons why they cannot.

Meaning that there IS NO hard yes or no answer to the question. Jury's still out on that one.
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  #68  
Old 03-21-2019, 11:44 AM
NoExpert NoExpert is offline
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Quote:
Originally Posted by Kevin Rohrer View Post
It depends on what your state criminal code says, and what the local Prosecutor, Police Chief/Sheriff wants to do. Firearms can usually be traced back to their last owner.
Yep, check your local laws.

According to the AG of the State of North Carolina:

Quote:
Many people remember the old saying "Finders keepers, losers weepers." The
finder of lost property is a holder of the property in trust for the true owner, with
certain rights and obligations. Ray Andrew Brown, The Law of Personal
Property 3.1at24 (3d ed. 1975). The finder of lost property has a better claim
and right to the found property than anyone else, except, of course, the original
and rightful owner. Thus, the department should make reasonable and just efforts
to find the original owner and restore his property to him. It is advisable for the
department to keep the property for at least 60 days prior to returning it to the
finder. If the department is unsuccessful in locating the original owner, after a
reasonable effort, the finder is entitled to the property.
In the specific case of a firearm, the above follows the logical process of trying to match the firearms to a crime, seeking out the lawful owner, etc. If all that proves fruitless, the weapon is deemed to be safe/legal and the finder is eligible to own the firearm, then the finder can claim it. Of course all those steps could take years, plus the firearm could get "lost" before the process is completed.
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