IMPD policy on seized guns called into question
INDIANAPOLIS (WISH) — The Indianapolis Metropolitan Police Department has thousands of guns in its property room.
Many of the guns have been connected to a crime. Some of them have not.
The police department sends every single gun to the ballistic lab for testing. The data is sent to the federal Bureau of Alcohol, Tobacco, Firearms and Explosives for entry into a national database.
I-Team 8 is told the Indianapolis department is carrying out this practice without a search warrant or probable cause, making this decadesold practice a possible violation of federal rules and the Fourth Amendment.
Ahmere Nance has been patient. He says police towed his car with his firearm inside. He was not a suspect in a crime, but police kept his gun in the property room for two years.
Nance and his firearm were escorted out of the City-County Building by a Marion County sheriff’s deputy, which is standard practice.
Nance and others are told not to open the sealed box containing their gun until they are off city property.
What he and others are not told is his gun had been test-fired. The shell casings were collected and scanned for ballistics, and the information sent to ATF.
IMPD Assistant Police Chief Chris Bailey told I-Team 8 that all guns confiscated by police, regardless of the circumstances are taken to the crime lab. “They are processed down in the citizen service section, firearms section, entered into the system as property, and then at some point make their way over to the crime lab.”
All guns, whether involved in a crime or not, are processed. Asked if IMPD has probable cause or search warrants to do the processing, Bailey said. “Not that we know of. We went back and checked how long this has been going on. A former employee who came on in 1973, and it was happening then in the 1970s, and she worked another 30 years here and retired a couple years ago.”
Guy Relford, an attorney and Second Amendment rights advocate, says IMPD’s practice of collecting ballistics information without a search warrant or probable cause raises some thorny legal questions.
“I think there are some real Fourth Amendment issues. The legal questions would be: Is it a search? Then, is it an unreasonable search, because that is what the Fourth Amendment prohibits? But, I think you are getting very close to that, if not crossing that line, when the gun is not actively involved in a criminal investigation, particularly when the gun is recovered for the victim of a crime. You are the victim of a crime, but information on your gun is being generated and turned in in terms of the ballistics and put into databases when you are the victim. I don’t know what the justification of that is.”
IMPD’s Bailey said, “Is there any concern from a law enforcement perspective that we have firearms that have not been involved in a crime that are being processed that is a Fourth Amendment issue?”
He continued, “You know, I don’t know that our attorneys, you know, have looked into that. There is nothing they can find at this point. They are still gathering information. Most of the firearms we have either come into our procession either because they were potentially involved in a crime or recovered from a crime. They have been abandoned. Some are for safekeeping, but most of them you can make some link to potential for crime and some, you just don’t know. That is the purpose of NIBIN (the National Integrated Ballistic Information Network) to see if there is a connection. To my knowledge and the attorney’s knowledge, there has never been a challenge to our processes. … However, we are looking into it now to see if it is something we need to change. It has not been brought to our attention that it is something that is an issue.”
IMPD may not have heard from people, but Relford has heard plenty of legal gun owners trying to get their firearms returned from the IMPD property room
“Well, that is a conversation I have all the time, because people call me all upset. I have two messages since we set up this interview from people saying, ‘I need to get my gun back from IMPD.’ So, here is how the conversation goes. ‘M hourly rate is $300 an hour, which is pretty low for a lawyer in this area. What’s your gun worth? $700. $600. $500. $400. All right, that is an hour and half of my time. If we sue them, it is going to take a hell of a lot of my time. How much is this going to cost? $7,000. $8,000? $10,000?” Relford said.
Relford says IMPD’s policy to get a firearm returned to the rightful owner is tricky and time-consuming.
The department requires a background check, fingerprints, and proof of purchase.
“Because you have an awful lot of people who are being deprived of their property with no real legal basis to do so other than ‘Sorry, you haven’t proved this is your property that we took from you or that we recovered on your behalf.’ It is actually not your property and the constitutional violations are something to take a look at, too, and, again, I’m the victim of a crime, and you are putting my gun through ballistics test why, and what is the justification for that, and due process is a real issue also because you are depriving me of my property with no due process also. What it does? It goes into a queue. It gets in line with all the other guns that are in the queue to have ballistics run on it, where they actually test-fire it so they can compare it to other projectiles they may have recovered at crime scenes, and they run serial numbers to make sure it is not stolen. I have been hearing that for several years. That is the protocol, that whole process of getting through the queue and having those test run and that search done can take a long damn time.”
So, what happens to the information collected by IMPD is that the data is sent to ATF for entry into the NIBIN database, said ATF Special Agent Daryl McCormick.
“We take key data, incident data. NIBIN is a cornerstone of that because NIBIN helps us connect one shooting to another. We look at things like trace data, try to determine how the firearms are being transferred from lawful use to criminal use,” McCormick said.
McCormick says that the firearms data given to them is supposed to be for guns involved or suspected to have been involved in crimes.
However, IMPD is sending data from every firearm, which could be a violation of ATF policy.
“Well, they have been recovered by police, but they should be suspected of use or recovered, for the most part, yes,” McCormick said.
Mike Williams had 20 of his guns stolen two years ago. Four of his guns have been recovered by police after a suspect was arrested and convicted.
Williams told I-Team 8 the property room can’t find his guns. “At this point, they don’t even know, the last time I talked to them, is they would look into it. I even gave them my case number, and they couldn’t even find the case number, and the case number has all the weapons listed. I have all my serial numbers,” Williams said.
To prove proof of purchase, Williams needs a receipt. The process of getting the receipt is cumbersome. IMPD requires the firearm owner to prove they are legally allowed to own a firearm with a background check and fingerprints. Proof of purchase involves a trace of records from the licensed firearms dealer where the gun was purchased.
Greg Burge, the owner of Beech Grove Firearms, told I-Team 8, “This store averages, we average between 20 and 30 traces a week, and I can just tell you in the last four hours we have received three traces.”
Burge says his store has seen a marked increase in the number of ATF and customer traces in the past two years or so. The increase was driven, in part, he says, by IMPD policy.
Bailey says IMPD is taking a hard look at its policy.
“We are looking at everything from top to bottom. If we’re sending guns over there unnecessarily, slowing lab work down, we don’t want to do that either. It is important we understand, and, like we said, it has never been brought to our attention this is a issue. We are now digging into it to make sure which, what we are testing, what should be testing, what is the authority to test and what do we need to adjust in order to not do the things shouldn’t be doing and do more of the things we should be doing.”
Bailey added IMPD has close to 21,000 firearms in the property room. Most are believed to have a connection to a crime.
“At the end of the day, we don’t want to create case law either, right. If we need to make adjustments to something that has been going on for 50 years, we make those adjustments. There is nothing nefarious here, but I’m also cognitive of technology to make sure we solve crimes and make sure we don’t put a gun back in a murder’s hand, but we also want to follow the law,” Bailey said.
Bailey told I-Team 8 that the police department’s lawyers will examine their rules, and IMPD would make changes if the lawyers believe the policy violated federal rules and the Constitution.