Firearms lawyer Simon Munslow will answer your legal questions. Email him with your query or concern and we’ll publish his response here.
A while ago I was approached by a dealer, who had an issue involving a firearm that had been seized by the police and damaged while in their care.
When police seize a firearm, they are responsible for its care while it is in their possession and they can only lawfully destroy it if they first obtain an order from the court or your consent.
If they damage the firearm, lose it or, god forbid, destroy it without authority, they can be liable for compensation.
Unfortunately, it is very common for firearms seized by police to receive little respect in their handling and be damaged as a result of this lack of care. The reason for this is poor training, because sadly, most police have not received training on the care of firearms.
If your firearm is damaged in their care, it will be necessary to prove that the damage occurred while police had custody of the firearm. This is easier where others such as shooting mates frequently see or handle your firearms as they can provide evidence regarding the guns condition in recent times.
I also suggest that you photograph your guns with a camera capable of recording time and date. Get close ups of metal work and stocks, cover all angles, so as to avoid the effect of glare and reflections.
Store these photographs in the Cloud or somewhere else that is off site and safe, and not also subject to potential seizure or loss, such as your computer.
This will help guns to be identified in the event of theft and it will assist if you ever have a dispute with an insurer following an insurance claim, or any other dispute, for example, with the police regarding the condition of your firearms at a particular point in time.
If you think you are in a position where your firearms may be seized, I suggest that you get in first and arrange safe storage with a dealer or a club armourer.
If you believe someone is going to seek a violence order against you, ensure that they do not know you have placed your firearms in the care of a dealer or armourer, and lock the receipt in your gun cabinet for ease of retrieval if police are called.
This way if there is an allegation of an assault with one of your firearms, it provides an easy way of disproving the allegation and this may lead to the person accusing you being charged (though the latter is sadly unlikely in my experience).
If the guns are seized and taken to a police station be wary. Coastal areas are humid and rust can be a problem if items are not stored appropriately. I have seen many instances where police have put firearms into an evidence locker in its plastic slipcase and this has resulted in a rusty firearm.
I have also seen expensive stocks damaged by having firearms placed roughly into the cabinet beside them, bands of rust (in one instance, with a nice fingerprint of perpetrator in rust on the barrel) where a person who obviously had sweaty fingers has placed a gun in a cabinet.
If police come to seize your guns while acting on a warrant they will usually video the search. If you can keep a sufficiently cool head in this situation, ask police to scan the video camera over each firearm in turn, recording the condition of each side of the firearm, and also have them video any items seized before they are placed into a crate or box.
This provides additional evidence regarding the condition of items seized and is easier than trying to get the policeman to note the condition of each on the seizure docket.
Also try to ensure that the video camera scans all items seized. I have seen instances where quantities of equipment has gone missing and the generic description of ‘case of assorted shooting bits and pieces’ does not assist one in either locating the items or placing a value upon it later.
Ensure police have access to cases to carry firearms in when taking them to the station. If there are more guns than cases I suggest they be wrapped in old sheets or blankets.
After they have been logged in at the station, ask the custody sergeant if a friend can attend the station and ensure that the firearms are wiped down with an oily or silicone impregnated rag to prevent rust.
If asked politely, police will oblige, providing forensic testing is not required (they would not want you destroying DNA or prints!) The last thing they want to deal with is a compensation claim.
The other year I had cause to contact a prosecutor in Launceston as my client and I were concerned that the client’s Perrazi shotgun could be damaged in storage.
After I had alerted the prosecutor to the risk of rust in the damp Launceston environment, he found an officer in the station who shoots competitively. I recently had the opportunity to share a pizza with the officer concerned when he was in Canberra competing in the Nationals, and he seems to have responsibility now for ‘babysitting’ quality firearms.
I take my hat off to the Launceston police for adopting this approach.
A further difficulty is the individual who is the subject of a warrant for whom this is a difficult time. He or she is often present and under arrest. Usually they are scared.
Do not get hot under the collar and rude to the police. You do not want a charge of impeding a police officer in the execution of his or her duty on top of your other woes. Remember, most police are decent people who do a tough job and while sworn to enforce the law, many have personal views that are critical of the current gun laws.
This does not mean that you cannot make your point, but if asked to make a statement, politely insist on your right to silence. Do not make a statement until you have spoken to a lawyer.
This article does not constitute legal advice, nor does the reading of it, give rise to any solicitor-client relationship. If confronted with a legal difficulty involving firearms I suggest you contact someone experienced in the area.
If you have any comments, or suggestions for future articles please advise.
My contact details are (02) 6299 9690 or firstname.lastname@example.org