The purpose of this article to give you, a knife owner, tips on what to do if you get a knife confiscated by law enforcement. This page is not legal advice, but practical tips and pointers.
The scenario is, unfortunately, all too familiar: a knife owner is stopped by police while carrying and the police officer confiscates the knife. Sometimes this happens when the knife owner is arrested, but often the police officer, mistaking the knife as contraband (an item illegal to possess), takes the knife and doesn’t arrest the owner. In the mind of the police officer, they are doing the person a favor – like giving the knife owner a warning instead of a speeding ticket.
If the knife truly is contraband, this is an act of mercy on the part of the officer. But often legal knives are confused with illegal knives, even in jurisdictions with straightforward knife laws. This is because the wide variety of knife designs do not easily fit into legal categories in the law. For example, assisted opening knives are often confused for switchblades.
As a knife owner, what can you do if your knife is confiscated? Here is some information.
NOTE: If this knife is contraband or involved in a crime, leave it. Asking for it back could be used as evidence against you in a criminal case.
There are two ways to get a knife (or any property) back: going through the police process or going to court directly. Going through the police department is less expensive and involves filling out forms (see below for more information). That process might end up in court eventually or you may have to go to court first, depending on the jurisdiction and size of the police department.
Be warned: Getting the knife back through the courts is not cost effective. Between the filing fee associated with a motion for return of property, costs of time off from work, and lawyer fees, a replacement knife is almost always a cheaper option. Note that if there is a pending criminal case involving the knife, you may not have to pay a separate filing fee to get the knife back. That said, try getting your knife back through the police procedure first, if you can do so without getting in trouble.
If you want to take a stand for principle, the knife has sentimental value, or the knife is unusually valuable, it may make sense to pursue court options. It is always good to hire a lawyer to deal with legal issues. Here are some tips for hiring a lawyer in this situation:
- Check for relevant experience. Criminal defense lawyers and lawyers that specialize in Second Amendment cases will likely have more relevant experience than a general civil practice lawyer.
- Ask for a flat fee rate. Most lawyers charge by the hour, but see if they are willing to work for a single flat fee. This will help control your costs.
- Check for “limited” representation. In some but not all states lawyers can provide “partial” assistance on a matter. This is called “unbundled legal services” or “limited scope legal services.” This, too, can control costs.
It is also important to know where you are in the proceedings. Case law created are three possible stages:
- Case pending: here you have to prove the knife is not related to the case; property unlikely to be returned.
- Case resolved: here the police have to provide a reason to keep the knife; property more likely to be returned.
- Charges not filed: in this scenario the police can hold the knife for a “reasonable” amount of time, with an understanding on the part of the court that charges might be filed. Case law does not define “reasonable” as it is context dependent.
Finally, be aware that police departments sell or destroy seized property on a regular basis. Act quickly in getting your knife back, provided, of course, doing so doesn’t get you in trouble. If a case is pending, tell the State you want your property back when it is over.
Police Department Process
The process of returning property in police custody is a local one with no guidance from federal law or the U.S. Supreme Court. There are some federal and state laws regarding the return of weapons, and most police will consider a knife a weapon for purposes of the return of property process. Here are some typical parts of the process found in most jurisdictions (NOTE: The process is different if charges are pending):
Documentation: police departments usually have forms requiring documentation of three things: 1) the person’s identity; 2) proof of ownership; and 3) the person’s legal and mental health history.
Police Review: once the documentation is complete the police review it. If the item requested is a weapon assume they will run a criminal background check. State and federal law bars some people from having weapons. This list usually includes: felons, people convicted of domestic violence, people on bail, probation, or parole, people subject to a stalking order, and the mentally ill. If you fall in to one of these categories they will most likely refuse to return your knife.
Appeal: if the police determine that you cannot get your knife back, in most instances you have the right to appeal, sometimes to an administrative process and sometimes to a court. If you decide to appeal to a court, bear in mind the costs mentioned above. Courts, like police, have wide latitude in returning weapons to people.
If the police process fails or you are required to start in court, there are two different paths you can take, both of which are expensive.
First, you can file a traditional motion for return of property. This motion is common in most state courts and there are set procedures and forms. Check your local court rules.
Second, there is new approach, still unsuccessful approach. Recently, a few people have tried getting property back by filing a civil rights case (a “1983 case”) in federal court claiming the State has deprived them of their civil rights by taking and keeping their property without good reason. This approach is more work and more costly than the traditional return of property process and still unproven. For more information on this approach, see Weinstein v. Krumpter, 120 F.Supp.3d 289 (E.D.N.Y 2015). These are federal cases so they will be more costly, difficult and expensive, but if you win you may get attorney’s fees paid.
Right now, a traditional return of property motion is the best course, at least until someone wins a 1983 case for return of property.
Generally, knives are not expensive enough to justify going to court to get it back, but you might be able to complete the process on your own just by doing paperwork at the police station. Obviously only do so, if it will not get you in trouble, and if you are uncertain if it will, consult with a lawyer first. Certain people may be ineligible to get their knives back. Finally, if you do decide to go to court, it’s probably best to wait until your case, if there is one, is concluded. And, as always, you stand a better chance if you hire a lawyer.
See also Encounters With Law Enforcement
This article was written by Anthony Sculimbrene, Esq., a New Hampshire criminal defense attorney who worked for 12 years for the New Hampshire Public Defender and has extensive trial experience. He is an avid outdoorsman, blogger and contributes legal expertise to the American Knife & Tool Institute compliments of Microtech.