NEW ORLEANS (CN) – Police should not have kept a man’s handgun after the district attorney refused to prosecute him on the charges for which he was arrested, the 5th Circuit ruled.
Errol Houston Jr. was arrested in 2008, and New Orleans officers confiscated his Glock 22 .40-caliber pistol.
Though the district attorney entered nolle prosequi (abandonment of prosecution) on the charges against Houston about a month later, he never recovered his weapon.
In a July 2009 complaint, Houston accused the district attorney of regularly failing to return firearms seized during arrests.
A month later, officers again arrested Houston, this time telling him that there was a warrant out for his arrest on the grounds of illegal possession of a firearm. The district attorney had apparently issued that warrant three days after Houston filed his civil rights complaint.
When the district attorney abandoned these charges as well, Houston amended his complaint to include claims for retaliation and wrongful arrest.
A federal judge subsequently dismissed the suit, but the 5th Circuit reinstated it last week.
There are two Louisiana laws that would give New Orleans officials the right to keep lawfully seized property, but the three-judge panel found that “both statutes mandate the return of property, firearm or other property, to its lawful owner when it is not contraband and is no longer needed by law enforcement.”
“Accepting, as we must, the truth of the well-pleaded allegations in Houston’s complaint, the government’s refusal to restore the firearm to Houston following the second nolle prosequi (if not earlier) arguably placed it in violation of these state-law provisions,” the unsigned decision states.
The first statute, La. Rev. Stat. 40:1798 says a seized firearm has to be returned if the police know whose property it is, and the owner has not violated any state or local ordinance.
The second statute, La. Rev. Stat. 15:41, says the property can be returned to the owner or it may be destroyed after five years if prosecution has occurred and the property is of any “controlled dangerous substance.”
“On remand, if Houston does not secure return of his firearm under state law, those two constitutional claims must be addressed,” the panel said, referring to Houston’s Second Amendment and procedural due-process claim.
The trial court should also determine whether the government has an active “use” or “need” for Houston’s handgun.
Judges Rhesa Hawkins Barksdale, Emilio Garza and Jennifer Walker Elrod sat on the panel.