A Michigan man whose lawfully possessed pistol was seized by a sheriff's deputy because it didn't appear in a state database is now suing to get the gun back, arguing that his Fourth, Fourteenth, and Second Amendment rights were violated by the Livingston County Sheriff's Department.
Andrew Kilbourn was pulled over by Deputy Alexander Kotsonas after he was spotted allegedly passing vehicles on the shoulder of the road. Kilbourn had an H&K VP9 pistol in a holster on the front passenger seat when Kotsonas approached Kilbourn's truck. Kilbourn informed Kotsonas that he had a license to carry, but Kotsonas allegedly reached into the vehicle and took the pistol without Kilbourn's consent, then took it back to his patrol vehicle and checked the handgun's serial number with the Law Enforcement Information Network.
According to the complaint, there was no gun with that serial number in the system. Kilbourn explained he had purchased the pistol approximately four years earlier, and had mailed the sales record to his local police department in Taylor, Michigan, as required by state law. Kotsonas then checked in with a supervisor before ultimately taking the pistol and 18 rounds of ammunition.
Kilbourn argued with the deputy, telling him that with a license to carry no state record was necessary for him to possess the pistol, but Kotsonas allegedly told him that the gun would remain in the possession of the sheriff's department until Kilbourn could register it and provide proof of ownership.
Kilbourn received a citation for careless driving and improper license plate display, according to the police report included in the lawsuit. He was not cited for or charged with any weapon offense, according to the lawsuit.
The county closed the case Aug. 26, and the gun remains with the sheriff’s office, where it is described as an “unregistered firearm” with no identified owner, the lawsuit states.
“No forfeiture proceeding or other legal process has been initiated concerning the pistol or the ammunition,” according to the lawsuit.
Under Michigan law, any purchaser of a pistol is supposed to forward a copy of the sale record to his local police department within 10 days. Kilbourn maintains that he complied with the law, pointing out that it's up to the local police department to then send that information on to the Michigan State Police.
“Whether a pistol appears in the pistol entry database therefore depends on the acts of government agencies over which the purchaser has no control,” the lawsuit states.
There is no procedure by which the owner of a pistol already in his possession may “register” it, according to the lawsuit.
Further, a gun owner is only required to have the sales record while carrying the gun for 30 days after the purchase, the lawsuit states, citing Michigan law.
Kilbourn isn't directly challenging that state law, but does argue that "No historical analogue supports seizing or depriving a lawfully possessed firearm from a licensed carrier, and retaining it indefinitely, because the firearm does not appear in a government database, where no charge has been brought, no adjudication has occurred, and no forfeiture proceeding has been initiated."
I suppose that's true, but I'd go even further and argue that no historical analogue supports submitting proof of purchase of a pistol to your local police department for the purpose of maintaining a list of gun owners. Kilbourn can lawfully possess firearms. Why should the state of Michigan demand to know what firearms he owns?
Either way, taking Kilbourn's gun until he can provide proof of ownership appears to be problematic under state law. The Livingston County Sheriff's Department has no evidence that Kilbourn doesn't lawfully own the handgun, so what is the basis for confiscating the pistol?
“The plaintiff was advised that if he showed proof of ownership, the weapon would be released to him. Seems to me this would have been a lot simpler than filing a lawsuit and wasting time and money. Lastly, I’m confident this suit will resolve itself in our favor,” the sheriff said.
I wouldn't be so confident if I were the sheriff. The lawsuit correctly states that gun owners are only required to have that proof of purchase with them for the first 30 days. And the lawsuit is also accurate when it states that there is no way for a gun owner to directly register a handgun, because it's up to the local police department to send that paperwork on to the Michigan State Police.
I would love to see Kilbourn's case lead to this idiotic law being struck down in its entirety, but at the very least Kilbourn should have his firearm returned to him and Livingston County pay his attorneys' fees. Kilbourn has never been charged with a crime associated with possessing the VP9, the sheriff's department has no reason to believe he's not the legal owner, and from what I can see, has no basis for seizing the gun in the first place, much less refusing to give it back.
