HB-4431, As Passed House, November 10, 2010

SUBSTITUTE FOR

HOUSE BILL NO. 4431

     A bill to amend 1931 PA 328, entitled

"The Michigan penal code,"

by amending sections 239 and 239a (MCL 750.239 and 750.239a),

section 239a as added by 1996 PA 496.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 239. (1) All Except as provided in subsection (2) and

subject to section 239a, all pistols, weapons, or devices carried,

possessed, or used contrary to this chapter are hereby declared

forfeited to the state , and shall be turned over to the

commissioner of the Michigan state police or his designated

representative, department of state police for such disposition as

the commissioner may prescribe determined appropriate by the

director of the department of state police or his or her designated

representative.

     (2) The director of the department of state police shall

dispose of firearms under this section by 1 of the following

methods:

     (a) By conducting a public auction in which firearms received

under this section may be purchased at a sale conducted in

compliance with section 4708 of the revised judicature act of 1961,

1961 PA 236, MCL 600.4708, by individuals authorized by law to

possess those firearms.

     (b) By destroying them.

     (c) By any other lawful manner prescribed by the director of

the department of state police.

     (3) Before disposing of a firearm under this section, the

director of the department of state police shall do both of the

following:

     (a) Determine through the law enforcement information network

whether the firearm has been reported lost or stolen. If the

firearm has been reported lost or stolen and the name and address

of the owner can be determined, the director of the department of

state police shall provide 30 days' written notice of his or her

intent to dispose of the firearm under this section to the owner,

and allow the owner to claim the firearm within that 30-day period

if he or she is authorized to possess the firearm.

     (b) Provide 30 days' notice to the public on the department of

state police website of his or her intent to dispose of the firearm

under this section. The notice shall include a description of the

firearm and shall state the firearm's serial number, if the serial

number can be determined. The department of state police shall

allow the owner of the firearm to claim the firearm within that 30-

day period if he or she is authorized to possess the firearm. The

30-day period required under this subdivision is in addition to the

30-day period required under subdivision (a).

     (4) The department of state police is immune from civil

liability for disposing of a firearm in compliance with this

section.

     Sec. 239a. (1) Before a firearm is turned over for disposal

under section 239, the police agency that recovered or confiscated

the firearm shall determine if there is a known legal owner of the

firearm and whether the firearm has been reported stolen. If the

police agency determines a serial number has been eradicated from

the firearm, the police agency shall submit the firearm to the

department of state police or a forensic laboratory for serial

number restoration to determine legal ownership. In making the

determination of ownership required under this subsection, the

police agency shall review information contained in the law

enforcement information network and examine that police agency's

stolen property reports. If the police agency determines the

firearm is stolen, the police agency shall notify the agency

reporting the firearm as stolen and return the firearm to that

agency at the conclusion of the criminal case. The agency receiving

the firearm shall notify the legal owner and provide for

disposition of the firearm in compliance with subsections (3) and

(4).

     (2) If the owner is not alleged to have been involved in the

violation for which forfeiture is required or did not knowingly

allow the firearm to be possessed illegally, notification shall be

given at the conclusion of the criminal case but not later than 90

days before the firearm is disposed of under section 239.

Notification under this subsection may be given by certified mail

sent to the owner's last known address, or by personal contact with

the owner.

     (3) The police agency shall return a firearm to its owner if

the owner claims the firearm within the notification period and

that police agency determines that the owner was not involved in

the violation for which the firearm was seized. Except as otherwise

provided in subsection (2), a firearm shall be returned under this

subsection within 30 days after the firearm is claimed by the owner

unless the owner is prohibited from possessing a firearm under

state or federal law.

     (4) An individual claiming ownership of a firearm may petition

the circuit court for return of a firearm under this section if

return of the firearm is denied by the police agency or if the

firearm is not returned within 30 days as required under subsection

(3). The police agency shall not dispose of a firearm until the

expiration of the 30-day period or, if a petition is filed under

this subsection, until permitted to do so by the court.

     (5) A police agency shall turn confiscated weapons over to the

department of state police under section 239 not more than 1 year

after final conclusion of the criminal case and expiration of the

appeal period. The police agency shall first make a reasonable

effort to contact the owner of the firearm to determine whether a

demand for the firearm is forthcoming.

     (6) A police agency that seizes a firearm for forfeiture under

this act shall exercise reasonable care to protect the firearm from

loss or damage while the firearm is in its custody.

     (7) As used in this section, "police agency" means 1 or more

of the following:

     (a) The department of state police.

     (b) A county sheriff's department.

     (c) A police department or public safety department of a local

unit of government.

     (d) A police department or public safety department of a

college or university.

     (1) A law enforcement agency that seizes or otherwise comes

into possession of a firearm or a part of a firearm subject to

disposal under section 14 may, instead of forwarding the firearm or

part of a firearm to the director of the department of state police

or his or her designated representative for disposal under that

section, retain that firearm or part of a firearm for the following

purposes:

     (a) For legal sale or trade to a federally licensed firearm

dealer. The proceeds from any sale or trade under this subdivision

shall be used by the law enforcement agency only for law

enforcement purposes. The law enforcement agency shall not sell or

trade a firearm or part of a firearm under this subdivision to any

individual who is a member of that law enforcement agency unless

the individual is a federally licensed firearms dealer and the sale

is made pursuant to a public auction.

     (b) For official use by members of the seizing law enforcement

agency who are employed as peace officers. A firearm or part of a

firearm shall not be sold under this subdivision.

     (2) A law enforcement agency that sells or trades any pistol

to a licensed dealer under subsection (1)(a) or retains any pistol

under subsection (1)(b) shall complete a record of the transaction

under section 2 or section 2a, as applicable.

     (3) A law enforcement agency that sells or trades a firearm or

part of a firearm under this section shall retain a receipt of the

sale or trade for a period of not less than 7 years. The law

enforcement agency shall make all receipts retained under this

subsection available for inspection by the department of state

police upon demand and for auditing purposes by the state and the

local unit of government of which the agency is a part.

     (4) Before disposing of a firearm under this section, the law

enforcement agency shall do both of the following:

     (a) Determine through the law enforcement information network

whether the firearm has been reported lost or stolen. If the

firearm has been reported lost or stolen and the name and address

of the owner can be determined, the law enforcement agency shall

provide 30 days' written notice of its intent to dispose of the

firearm under this section to the owner, and allow the owner to

claim the firearm within that 30-day period if he or she is

authorized to possess the firearm.

     (b) Provide 30 days' notice to the public on a website

maintained by the law enforcement agency of its intent to dispose

of the firearm under this section. The notice shall include a

description of the firearm and shall state the firearm's serial

number, if the serial number can be determined. The law enforcement

agency shall allow the owner of the firearm to claim the firearm

within that 30-day period if he or she is authorized to possess the

firearm. The 30-day period required under this subdivision is in

addition to the 30-day period required under subdivision (a).

     (5) The law enforcement agency is immune from civil liability

for disposing of a firearm in compliance with this section.

     (6) As used in this section, "law enforcement agency" means

any agency that employs peace officers.

     Enacting section 1. This amendatory act does not take effect

unless Senate Bill No. 212 of the 95th Legislature is enacted into

law.