Forfeiture of Firearms

By Brett A. Purtzer 

     Many of us have had occasion when, after a trial or as part of a negotiated plea, a condition of the sentence is the forfeiture of a firearm if that firearm was used at the time of the event for which our client was charged.  The forfeiture of firearms statute set forth under RCW 9.41.098 provides the prosecutor unfettered discretion in seeking forfeiture of a firearm.  Importantly, that statute allows the superior courts and courts of limited jurisdiction to order forfeiture of a firearm under very broad terms.  One circumstance allows forfeiture of a firearm when it is proven that it was “in the possession or under the control of the person at the time the person committed or was arrested for committing a felony or non-felony crime in which a firearm was used or displayed.”  That section is significant because it allows the state to seek forfeiture of a firearm when a person is engaged in lawful conduct, notwithstanding that a court believed that there was probable cause in which to arrest and then subsequently charge an individual with a criminal offense.

     There are some exceptions to the forfeiture requirements of firearms found in subsections 3 and 4 of the above-referenced statute.  Namely, the court can order the firearm returned to an innocent owner or to the individual when no probable cause is shown to believe a violation of subsection 1 occurred or if the charge has been dismissed.  See, Barlindal v. City of Bonney Lake, 84 Wn.App. 135, 925 P.2d 1289 (1996).  Barlindal goes through the analysis of the civil forfeiture under RCW 69.50 but it uses, by analogy, the language in RCW 9.41.098.

     Additionally, a situation may arise when an individual is arrested for a criminal offense and during a subsequent search of the person’s home or vehicle other firearms are found in addition to the firearm possessed by the individual at the time of the incident.  Pursuant to statute, the courts are entitled to forfeit the “firearm” which is proven to be in the possession or under the control of the person during the incident.  See RCW 9.41.098(1)(d).  Therefore, firearms subsequently found in a safety search not in the possession of the individual during the event should not be subject to forfeiture.              

     When seeking the return of a firearm, a question may arise as to what constitutes a dismissal when you have a deferred sentence or a continuation without findings where the ultimate disposition will be a dismissal.  Under such resolution, your client should not be required to litigate the forfeiture of the firearm until the conditions of the sentence are completed.  If the dismissal is granted, then, pursuant to subsection 4 of the above-referenced statute, the firearm should be returned to the owner.

     Because of the issues surrounding the return of firearms when they are part of a charged offense, one must review the statute so as not to waive the right to continually possess a firearm. Forfeiture of a firearm is not required under all circumstances and arguments exist regarding the scope of this statute and how it is to be applied in a particular case.