Firearms and Liability
by Wendy Svaren, Lake Oswego Police Department

An article in the Seattle Post-Intelligencer; reported by M. L. Lyke on August 25, 2003 was titled, "POLICE SUED OVER FAILURE TO CHECK GUN OWNER'S BACKGROUND. ANACORTES OFFICERS SEIZED A FELON'S GUNS  THEN GAVE THEM BACK; LESS THAN A YEAR LATER, SCOTT KINKELE WAS DEAD."

The suit filed in Skagit County Superior Court this past summer alleges that police confiscated and then negligently returned two guns to Eben Berriault in November of 1999, some eight months before Scott Kinkele's murder. Berrisult, now serving a 55-year prison term for the Kinkele killing, had a criminal record that included convictions for manslaughter, criminal trespass and burglary. Federal Law Title 18 U.S.C., chapter 44, sec. (g) (1), prohibits persons convicted of a felony from possessing firearms.  Two firearms were seized during a search warrant of Berriault's younger brother's home. A month later the guns were returned to the elder Berriault. Because the 35-year old construction worker and father of two was not the subject of the search warrant, officers did not run a background check before releasing the guns. An Anacorte press release dated Sept. 14, 2000, notes Berriault was "neither under investigation nor suspected of any criminal activity related to the execution of the search warrant" and added that "the Anacortes Police Department was not aware of Berriault's criminal background." Whether they should have been or not is a question that will be answered in federal court. Other testimonial questions are, what policies and procedures were in place regarding gun releases and are law enforcement agencies authorized to run background checks for this purpose and if so under what authority?

Pam Loginsky, staff attorney for the Washington Association of Prosecuting Attorney's was quoted in this article as saying "It is not clear that federal law allows us to do a background check before returning a firearm to an individual." Although that may be true, it is clear that Title 18 U.S.C. Chapter 44, Section 922 (d) prohibits us from releasing a firearm when we have "reasonable cause to believe that such person" is federally prohibited from possessing a weapon. Where it gets murky is defining "reasonable cause" and then locating specific statutory authority given to all law enforcement agencies to run background checks for firearms releases. Yes, this case is in Washington but don't let that fool you into believing it cannot occur here. Guns are listed as one of the "big three" along with narcotics and money when it comes to liability issues and potential lawsuits. Be aware of potential problems with guns and prepare yourself by having procedures in place. Does your department have policies/procedures in place regarding firearm releases? Do you have release of liability forms for the owner to sign before the firearm is given to them? Do you request the prosecutor have the firearms forfeited during sentencing proceedings? If your answer to these questions is "no" you may want to work with your supervisor and get some procedures in place. 

Oregon Association for Property & Evidence is currently working with ATF, LEDS, OSP Firearms Division and Mental Health to define our authority when running records checks for gun releases. We hope to come up with a standard procedure for Oregon law enforcement agencies to use as a reference soon. Until then if you have concerns with running background checks for firearms releases, the OSP Firearms Unit has agreed to assist in running these checks, workload and priorities permitting. You may contact the Unit at (503) 378-3070. You may also contact OAPEO with any information or questions regarding this issue. Watch the web-page for informational updates.

Wendy Svaren is the president of the Oregon Association of Property Evidence Officers, an OPOA Subchapter. She can be contacted at svaren@ci.oswego.or.us.