In the case of Novak, et al. v Federspiel, the Saginaw County Sheriff’s Office seized fourteen guns from a cabin where a domestic violence event occurred. The cabin’s owners waited until the domestic violence case was completed. Then the owners of the cabin, who are relatives of the person charged, asserted the guns belonged to them and asked the Sheriff to return them. The guns were first taken in 2017.
The Sheriff refused to do so, saying, in part, the owners had not provided proof they owned the guns. Some of the guns were manufactured pre-1968 and were not made with serial numbers. The guns were older, and the owners did not have copies of receipts. Novak and Wenzel have filed affidavits stating they own the firearms.
Novak and Wenzel filed several state and federal cases against Sheriff Federspiel in his official and personal capacity, including claiming violation of their Constitutional rights under the Fourth, Fifth, Fourteenth, and Second Amendment rights, in various permutations. Eventually, the lawsuits were dismissed at the state and federal level and the plaintiffs filed an appeal to the three judge panel of the Court of Appeal for the Sixth Circuit.
The three-judge panel heard the case and reversed the District Court’s summary judgment on a Fifth Amendment takings claim against Sheriff Federspiel, allowing a trial court to resolve those claims.
The three-judge panel upheld the dismissal of due process claims.
The three-judge panel examined the Second Amendment claims. They vacated the District Court’s summary judgment against the plaintiffs and sent the case back to the District Court. From the opinion, bold added:
The right to keep or bear firearms would mean little if an individual lacked any presumptive right to keep or bear his own firearms. See Frein v. Penn. State Police, 47 F.4th 247, 254 (3d Cir. 2022). In that event, one might ask, whose firearms would one keep or bear? The district court, for its part, said the Second Amendment did not apply here because Federspiel had not interfered with Novak’s or Wenzel’s ability to buy or own other guns. But that reasoning has neither any limiting principle nor any basis in the caselaw; to the contrary, it conflates Bruen’s two steps into one.
The right to keep or bear one’s own firearms is quintessentially conduct that falls within the text of the Second Amendment. The relevant questions here, rather, are twofold. First whether these plaintiffs in fact owned these guns. And second, if so, whether Federspiel’s possession of them has been “consistent with the Nation’s historical tradition of firearm regulation.” Bruen, 597 U.S. at 24. The district court can address those questions as necessary on remand.
We vacate the district court’s grant of summary judgment to Federspiel on the official-capacity Second Amendment claims.3
This is an important precedential case. While this case includes disputes about proof of ownership, confiscation of arms found during a criminal investigation is common. Around the country, this correspondent often sees officials promiscuously confiscating arms that have nothing to do with the crime that was committed. To treat firearms as contraband is to treat the Second Amendment as a second-class right.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.
I bet if you go to the Sheriff’s house, you’ll see the firearms in question and many other hanging on the wall
“The right to keep or bear firearms would mean little if an individual lacked any presumptive right to keep or bear his own firearms.” That a trial had to be convened to arrive at the antecedent conclusion is an indictment of the uselessness and buffoonery of the U.S. legal system. More broadly, the case emphasizes the rampant stupidity with which Western society is afflicted. Don’t fear plagues or war or societal collapse. Rather, fear the imbeciles and herders of imbeciles by whose aggregate stupidity, hubris, and greed plagues, wars, and social collapse are occasioned.
Under the presented theory, I have no proof that the gold crown on my molar is actually mine. It’s unregistered. I have no receipt. I can attest to the fact that it’s been in my mouth, but apparently that would be insufficient to prove ownership.
The Sheriff was engaging in ‘Lawfare’. Unless well off (“rich”) the family’s valuable possessions that were rightfully their’s to hold would have been lost to them forever. It would be interesting to know how much the rightful owners spent in legal fees to recover their possessions. The eight year legal battles are process and procedure totally unreachable to the vast majority of American citizens.
Many of us have firearms that have been handed down for one generation or more. We would have no way of proving ownership other than possession. The “standard” should be that possession proves ownership unless authorities can prove otherwise such as the firearm was stolen or obtained by some other illegal method! If that Sheriff had taken my deceased Father’s old European made double barrel from me and kept it when I was not guilty of any crime and would not return it, that would qualify as “living dangerously”.
Theft by law enforcement has become the norm unfortunately. Between sheriff sales, confiscation and outright theft you are fighting odds of getting your weapons back regardless of the reason the officers were there. Even when they do they often won’t release the ammo. It’s the same with cash. For “some reason” it’s taught that cash is the same as dope now and often stolen and/or skimmed.
After reading this article, the ordeal to get your weapons back would be a nightmare, I’d suggest you get your phone or video camera out and begin documenting the firearms in your possession and encourage family members to do the same. I’d also recommend you document the firearms in writing by, Mfg. SN, caliber, stock type, scope Mfg. etc. I also recommend documenting any items related to firearms, mags, reloading gear, holsters and ammo in stock pictures too. Put the video and documentation in a safe place should the info ever be needed.
When the sheriff entered the property on the original premise which brought his presence, he dealt with the underlying issues. That’s fine. Apparently he then noticed the firearms. We have no details describing the scene. He did. Apparent;y he decided, upon whatever cause, to seize the firearms. I will grant that he had initial justification for so doing. However, when the declared owner of the weapons claimed them and asked for their return, unless the sheriff had valid and specific evidence the guns were NOT his as claimed, he was then duty bound to release them. His blatant refusal to… Read more »
The only 2A big city liberals acknowledge is a 2A locked away in some footlocker and never touched. Except Bill Clinton. He “always admired hunters”.
Where is the theft aspect? Officials often commit theft under color of law.