There may be instances in which the police or law enforcement seizes your firearm If such a situation occurs, this write-up/ article explains when and how the firearm/ gun can be returned. These situations could potentially be evidence holds, protective orders or even federal firearm prohibitions.
Seizure of a weapon/ firearm can certainly feel personal, unfair, and even confusing in circumstances, especially when the gun is held legally by an actor. Generally, in Alaska, police may seize firearms for several legitimate legal reasons, including: (i) evidence in a criminal case, (ii) public safety generally during a domestic dispute, (iii) enforcement of protective orders, or (iv) because the person in possession is prohibited from owning a gun. In this regard it is important to note that all seizures are permanent and at instances a seizure may be reversed and the firearm/ weapon may be returned.
This article tends to bifurcate and break down:
- The causes of firearms seizure,
- When held as evidence,
- Protective orders affecting possession of firearms,
- Federal laws that may perpetually prohibit possession of firearms,
- How to seek judicial indulgence for return of seized firearm.
Note and advice to the reader that this article/ blogpost is informational in nature and should not be construed as legal advice. If the firearm/ weapon has been seized, speaking with an Alaskan defense lawyer promptly can result in a huge difference, and this article should only be used as the starting point for understanding.
Reasons for the Police to Seize Firearms in Alaska
Police, law enforcement agencies, or the courts do not seize firearms arbitrarily. The legal circumstances when a seizure is authorized are listed hereunder:
- Criminal Cases Evidence
Where the investigating agencies or police believe that a firearm/ gun was used in connection to the commission of an offense or a crime, or including a weapons charge, an assault, or any violent offense otherwise, such an offense would typically be seized as evidence.
Once seized and during the pendency of a case, the evidence which was seized in investigation of the crime, such evidence would continue to remain in the custody of the law enforcement investigating the offense, until the point the firearm/ weapon is no longer required or needed for the purposes of investigation or serves no ends in the investigation. In this regard it may be important to note that even if the case results in acquittal and no conviction is entered against the actor, the weapon/ firearm may remain in police/ law enforcement custody until otherwise ordered by a judge to the effect of its return.
- For Public Safety in Domestic Situations or Otherwise
In many domestic disputes, before proceeding on investigation on merits the law enforcement and police would remove firearms, as a standard operating procedure, to reduce risk of any lethal or injury otherwise.
Even otherwise Alaskan courts regularly include firearm surrender as part of protective orders in domestic violence cases. The statutory provision in Alaska Statute § 18.66.100 relative to the protective orders and empowers the adjudicating courts in order to prohibit respondents from possessing firearms. Exercise of this power results in the mitigation of the risk against firearms in domestic conflicts which in turn significantly increases the risk of serious harm.
- An Actor Legally Prohibited from Possessing Firearms
Under both the state and federal law, certain people of classes of persons are not permitted to possess firearms at all. Without delving into greater details, such persons are not allowed to possess firearms at all, and law enforcement agencies or police may seize firearms/ guns when they reasonably believe the possessor or the actor is disqualified from possessing the firearm. Such a restriction may arise in a spectrum of circumstances such as due to certain criminal convictions or protective orders in field. The Federal prohibitions are equally important and are detailed further in the text of this article.
Firearms in Evidence and Return
If seized in evidence during a criminal prosecution or investigation, such seized weapon would for more often stay with the law enforcement agency/ police until either (i) the case is resolved, and (ii) a court of competent jurisdiction orders its return.
Case of No Charges Filed or Case of Charges Dismissed
If charges are dropped, dismissed, resolved in an actor’s favor, or otherwise the result of prosecution is not in shape of conviction, in such circumstances the actor may be entitled to receive get your firearm back. However, note that this return cannot be treated as an automatic right. The actor having a right vested in their favor regarding the return of the firearm/ weapon would have to typically file a motion for return of property with the court.
The deliberating judge will consider the following issues: (i) whether the firearm is still needed as evidence, (ii) the actor being legally eligible to possess firearms, and (iii) the presence of any protective order(s) or other restrictions in that regard. It might be of good practice to note here that a common Alaskan practice is to file a post-case return of property motion that the court grants once no legal basis remains to keep the firearm.
Protective Orders and Firearms
Protective orders in Alaska frequently include firearm restrictions. Under Alaska Statute § 18.66.100, as already alluded to in the foregoing portions of this article, courts may issue protective orders in domestic violence cases. Such protective orders often include language prohibiting firearm possession and requiring surrender of firearms and guns.
Safety hearings are usually at the first instance either held ex-parte which entails an emergency, without the opposing side being present or subsequently/ at a later stage a long-term protective order after a full hearing.
After the protective order has been entered and once an order is in place the police may seize firearms to ensure compliance with the order.
These protective orders legally and substantially matter because they may prevent the firearm from ever being returned during the period of the order, and may trigger federal firearm bans under U.S. federal laws.
Federal Laws and Permanence on Firearm Ban
The Federal and State laws interaction is always quite unique specifically in circumstances such as the one being discussed. Even if Alaskan laws itself would allow a gun to be returned, the Federal law provisions can override it. For the readers, this could be one of the most important pieces of the puzzle.
The two critical federal statutes which are key to the topic under discussion are as under.
- 18 U.S.C. § 922(g)(8) Firearms Ban Under Protective Orders
Under federal law:
It is unlawful for anyone who is subject to a qualifying domestic violence protective order to possess firearms or ammunition. The nature and extent of the order would define the contours of the ban. Such an order restrains an actor from harassing an intimate partner or child, and by the terms of such an order the court explicitly prohibits the use, attempted or threatened use of physical force against the intimate partner or child.
In light of the mentioned provision if the Alaska protective order satisfies federal criteria (prima facie) and even after the Alaska case has met a resolution then the firearm cannot be returned until the protective order is no longer in effect and this prohibition will be carried out in light of the federal prohibition. Note that the tandem of prohibition with the federal law is not only Alaska specific rather courts across the U.S. have upheld the federal restriction because it is tied to public safety.
- Misdemeanor Crimes of Domestic Violence
18 U.S.C. § 922(g)(9) a.k.a “Lautenberg Amendment” which provides for prohibition against firearm possession by anyone convicted of a misdemeanor crime of domestic violence. Despite not mentioned explicitly in the provision, the interpretative tangents show that the prohibition is permanent in nature. In totality, if the conviction qualifies and enters field the federal law treats the convicted party as a prohibited person/ party, and firearm possession becomes a federal felony.
Note that in addition to and without prejudice to anything else, if under § 922(g)(9), an actor who pleads guilty or is convicted of a qualifying domestic violence misdemeanor cannot possess firearms, even if the conviction occurred years earlier, or no protective order is active.
An important case from the Alaskan jurisprudence helps to understand the scope of the federal prohibition and to understand the application of the federal law. In Eng v. State 535 P.3d 1023 (Alaska 2024), the Alaska Supreme Court addressed whether a person subject to a domestic violence protective order could be prohibited from acquiring firearms under federal law. The supreme court confirmed that when an order satisfies federal criteria under 18 U.S.C. § 922(g)(8), the individual may be denied firearm possession including the imposition of background checks for purchases because the federal prohibition continues to apply.
This case is representative of the effect that even if a state law doesn’t explicitly revoke firearm rights the federal law can still make an actor a “prohibited person” under federal firearms laws.
Who Can Receive the Firearm After a Seizure
Even when a court orders a gun returned, law enforcement agencies are cautious. Typically, the firearms will only be released to someone who is legally eligible to possess the firearms and can prove ownership and lawful possession.
On the contrary if a protective order or federal prohibition remains in effect, the police will often insist or rather adopt the route that requires that a firearm be held by a trusted third party, or the same be transferred to a licensed dealer, or such a firearm/ weapon remain in evidence hold until restrictions expire. Such cautious approach prevents the agency from inadvertently violating the law.
Weapon Seizure Without an Arrest
There may be circumstances in which a firearm/ weapon is seized for safety without the filing of charges. Such a seizure may be for safety, even if no charges were filed. Examples of such seizures may be (i) during a welfare check, (ii) after a suicide threat, (iii) at the scene of a family disturbance. If such a position presents then the police may either hold the firearm temporarily, or a supervisor or prosecutor reviews the circumstances, and often following a hearing which is scheduled to confirm whether continued seizure is lawful or a return is mandated.
Regardless of how the foregoing situation unfolds, the protective order terms and federal possession rules still can affect whether the firearm can ever be returned.
Do Not Attempt to Retrieve the Weapon Without Legal Help
Attempting to simply walk into a police station and retrieve a firearm can cause trouble when an order is in place, a case is still pending and is sub-judice, or a federal law prohibits possession.
In such circumstances an actor impacted should always consult an attorney specializing in the area and seek their assistance to obtain a court order before attempting a retrieval. The attorney will normally file the necessary motions, appear in court on behalf of the actor, communicate with law enforcement and the prosecutor, and ensure that your rights and others’ safety are considered and upkept.
Checklist Before Recovery
If an actor believes that the firearm should be returned then confirm that no protective order is active, confirm that no federal firearms ban applies, file a motion for return of property in the court that oversaw your case, prove legal eligibility without any prohibitions, supply proof of ownership and work with police officers keeping the property/evidence.
Conclusion
If you’ve lost access to your firearm because police seized it, the crucial questions are:
- Why was it seized?
- Is there an active protective order?
- Does federal law currently prohibit your possession?
The answers determine whether and when you can legally get your firearm back.
Because both Alaska state rules and federal law govern the process, this is not a subject where assumptions are safe. If your gun has been taken, talking with a knowledgeable Alaska defense lawyer immediately is one of the best steps you can take before time limits or legal barriers close.